Hobart v. Shin
Case Date: 09/15/1997
Court: 1st District Appellate
Docket No: 1-95-3735
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September 15, 1997 No. 1-95-3735 MILDRED A. HOBART, Indiv. and ) Appeal from the as Special Adm'r of the Estate ) Circuit Court of Kathryn Hobart, Deceased, ) of Cook County. ) Plaintiff-Appellant, ) ) v. ) ) DANIEL C. SHIN, ) Honorable ) LEONARD L. LEVIN, Defendant-Appellee. ) Judge Presiding. JUSTICE BUCKLEY delivered the opinion of the court: Plaintiff, Mildred Hobart, brought this action against defendant, Dr. Donald Shin, alleging that defendant deviated from the required standard of care by prescribing an excessive amount of the antidepressant Doxepin to plaintiff's daughter, Kathryn Hobart. Kathryn committed suicide by taking a lethal dose of the drug. The case went to trial, and the jury returned a verdict in favor of defendant. Plaintiff appeals, contending that: (1) the trial court erred in permitting defendant to file an affirmative defense raising Kathryn's contributory negligence; (2) the trial court improperly refused to give a jury instruction tendered by plaintiff regarding Kathryn's purported contributory negligence; and (3) the trial court erred in allowing defendant to testify as to personal experiences and attitudes. In 1987, Kathryn's father suffered a cerebral hemorrhage and Kathryn moved in with her mother to help with chores and transportation. Kathryn became depressed and, by August 1988, her depression had become quite severe. Defendant is a family practitioner at the University of Illinois who coordinates his patients' overall health. On August 9, 1988, Kathryn consulted defendant about her depression. She was experiencing fatigue, changing moods, lack of appetite, irritability, dizziness, nausea, and breathing difficulty. She denied feeling suicidal. Defendant diagnosed Kathryn with general anxiety disorder. He had another visit from Kathryn on August 18, 1988, and she appeared to be much better. In November 1988, Kathryn's depression returned. Defendant agreed to allow Kathryn to visit a psychiatrist at Hinsdale Hospital who prescribed Imipramine, an antidepressant. She was not suicidal, but the psychiatrist told defendant that Kathryn had a long history of depression and panic attacks. Defendant saw Kathryn again on November 22, 1988. Her condition had deteriorated to the point where she could not walk, sleep, or eat. Defendant was concerned that Kathryn may be considering suicide and arranged for her to see Dr. Doris France, a psychologist. Dr. France shared defendant's concerns and recommended that Kathryn be hospitalized. Kathryn voluntarily checked herself into the University of Illinois Hospital on November 23, 1988. Dr. Jeffrey Stovall processed Kathryn's admission. He testified that he believed Kathryn was thinking logically and did not have suicidal ideation. Nonetheless, he still put her on "Q-30 minute suicide precautions," the least restrictive suicide watch. Dr. Rachel Fargason treated Kathryn while she was hospitalized. When she first saw Kathryn, Dr. Fargason removed her from the Q-30 suicide precaution because there was no risk of suicide. During her stay at the hospital, Kathryn's condition went from active depression to depression in partial remission. Dr. Fargason kept Kathryn on Doxepin, prescribing 21 pills at a time. Although she was not displaying the symptoms of depression at the time of her release from the hospital on December 12, 1988, Kathryn's depression was only in "partial remission" because the clinical term "complete remission" is only applicable when a patient has been symptom free for three months. Dr. Fargason believed Kathryn was competent upon discharge and understood her treatment. After being released, defendant took responsibility for follow-up treatment. Defendant kept Dr. Fargason informed as to Kathryn's progress, which was substantial. Defendant testified that Kathryn was acting positive and upbeat. On December 21, 1988, Kathryn visited defendant complaining of constipation, a sideeffect of Doxepin. She also expressed concern about running out of medication and about the cost of filling frequent small prescriptions. Defendant gave Kathryn a laxative as well as a prescription for 90 Doxepin pills with one refill, 50 milligrams each. This constituted a month's supply of the drug. Defendant did not notify Dr. Fargason that he wrote the prescription. Dr. Fargason also saw Kathryn on an outpatient basis three times after her discharge. Dr. Fargason testified that Kathryn's depression remained under control throughout the outpatient period; she displayed no symptoms. On December 30, 1988, Kathryn told Dr. Fargason that she had no suicidal inclinations, and there was no evidence of distress. Dr. Fargason testified that defendant's conduct was consistent with the standard of care even though he did not call her when he wrote the December 21 prescription, because a prescription is not a matter of such importance that it must be communicated. On January 4, 1989, Kathryn's backpack was stolen. This event sent her back into a severe depression, but she did not call her doctors because she was afraid she would be hospitalized. On January 6, 1989, Kathryn was found dead in a motel room. Next to her body were two bottles of pills. Police officer Joseph Jeras testified that one was an empty bottle which had contained 180 Doxepin pills, 25 milligrams each, prescribed by defendant. This prescription was refilled on January 5, 1989. The other bottle was a prescription for 21 Doxepin, 50 milligrams each. This prescription was filled December 12, 1988. The second bottle contained 28 pills. The Cook County medical examiner's office determined the cause of death to be Doxepin intoxication. Dr. Randall Baselt, an expert in toxicology, testified that he believed Kathryn ingested about 5,600 milligrams of Doxepin, or the equivalent of 224 pills, 25 milligrams each. A lethal dose would be approximately 500 milligrams. Numerous expert witnesses testified at trial. Dr. Robert Nyquist is a psychiatrist who treated Kathryn at River Edge Hospital in 1982, after she made two suicidal "gestures." Dr. Nyquist testified that a suicidal gesture is a much less serious incident than a suicide attempt. After her discharge from the hospital, Dr. Nyquist prescribed a month's supply of Doxepin with one or two refills. Dr. Nyquist testified that in his opinion defendant breached the standard of care for failing to communicate the December 21, 1988, prescription to Dr. Fargason. The prescription itself was within the standard of care so long as defendant determined before writing it that Kathryn had no suicidal ideation. Dr. Gerson Kaplan was another psychiatric expert who testified on behalf of plaintiff. In Dr. Kaplan's opinion, Kathryn had suicidal ideation when she visited defendant on December 21, 1988, and at all times thereafter. In his opinion, defendant breached the standard of care by prescribing 90 pills of Doxepin with a refill and by failing to communicate the prescription to Dr. Fargason. Dr. Fargason testified that physicians only contact each other regarding important medical developments. Writing a prescription is not an important medical development. Dr. Fargason further testified that she had warned Kathryn repeatedly that taking one week's supply of Doxepin can be lethal. She believed Kathryn was responsible for her own suicide because at the time Kathryn was rational and competent, and she understood the consequences of her actions. Kathryn's suicide was carefully planned, as she obtained a refill and rented a motel room to do it. Dr. Fargason also testified that Kathryn knew she had other options available to her, including contacting Dr. Fargason. Kathryn had entered into a "no suicide" contract where she agreed to call Dr. Fargason if she became upset. Kathryn had Dr. Fargason's pager number and could have contacted her at any time. Dr. Andrew Slaby is a past president of the American Suicidology Association. He testified that it was well within the standard of care for defendant to prescribe a month's supply of Doxepin to Kathryn on December 21, 1988. At the time, Kathryn was stable; she exhibited no suicidal ideation. Furthermore, she was showing a favorable response to Doxepin. She had greatly improved in the time before the prescription was issued. Dr. Slaby further testified that Kathryn's suicide was a rational act. She could have killed herself any number of ways, including taking a much smaller dosage of Doxepin than the amount she ingested in the motel room. Finally, Dr. Finley Brown testified on behalf of defendant. Dr. Brown is a family practitioner. He testified that it is within the standard of care for a family physician to prescribe a month's supply of antidepressant medication to a patient experiencing severe depression. Dr. Brown believes that the prescription defendant wrote on December 21, 1988, was appropriate because Kathryn was stable at the time. He further testified that defendant was not required to call Dr. Fargason about the prescription. At the conclusion of the trial, the parties submitted their proposed jury instructions. With respect to the instruction pertaining to Kathryn's contributory negligence, defendant submitted Illinois Pattern Jury Instruction, Civil, No. 10.03, which states that it was Kathryn's duty to "use ordinary care for her own safety" and that a decedent is contributorily negligent if (1) she fails to use ordinary care, and (2) that failure is a proximate cause of death. Illinois Pattern Jury Instructions, Civil, No. 10.03 (3d ed. 1993). The circuit court gave the jury this instruction. Plaintiff submitted a non-IPI "capacity-based" instruction. Plaintiff's proposed instruction provided that "[i]t was the duty of the plaintiff's decedent before and at the time of the occurrence to use the degree of care that she was capable of exercising in light of her mental condition at the time of the occurrence." The circuit court refused this instruction. On June 28, 1995, the jury returned a verdict in favor of defendant. Plaintiff's posttrial motion was denied on October 11, 1995. Plaintiff filed a timely notice of appeal. A. AFFIRMATIVE DEFENSE Plaintiff contends that the circuit court erred in allowing defendant to file an affirmative defense alleging contributory negligence. Initially, plaintiff claims that the affirmative defense should have been barred as untimely. The record shows that plaintiff filed her original complaint in December 1989. Defendant sought leave to file his affirmative defense on May 30, 1995. The trial began in June 1995. The decision of whether to allow amendments to the pleadings is within the sound discretion of the trial court and should not be disturbed upon review absent an abuse of that discretion. Carlisle v. Harp, 200 Ill. App. 3d 908, 915 (1990). Such amendments should be liberally allowed to further the ends of justice. Carlisle, 200 Ill. App. 3d at 915. However, leave to amend may be properly denied where the amendment is offered on the eve of or during trial and there is no good reason for its omission from the original pleading. Carlisle, 200 Ill. App. 3d at 915. Here, the affirmative defense was filed 5 |