By Alex Stein
Almonte v. Kurl, 46 A.3d 1 (R.I. 2012), is a must-read malpractice decision. This decision is about a patient who was brought to a psychiatrist for involuntary committal evaluation after undergoing an acute episode. The psychiatrist examined the patient, but opened no committal process. As a result, the patient was released to commit suicide, apparently with the same gun that he threatened to use in the episode that triggered the evaluation.
The Rhode Island Supreme Court affirmed the trial judge’s determination that the psychiatrist’s failure to open the committal process amounted to malpractice. The psychiatrist was nonetheless able to summarily defeat the wrongful death action filed by the patient’s family.
How could that happen?
The Court decided that the plaintiffs failed to establish causation as they offered no evidence demonstrating that the committal process could have prevented the suicide. This process does not guarantee a committal, and the patient therefore could have committed suicide anyway.
The plaintiffs argued that they would not have faced the formidable task of proving the consequences of a counterfactual committal process if the psychiatrist were to open the real process. The plaintiffs’ inability to prove causation therefore resulted from the psychiatrist’s malpractice. Based on this undeniable fact, the plaintiffs asked the Court to award them spoliation remedies, compensation under the “alternative liability” doctrine, or, alternatively, compensation for the patient’s lost chances to be rescued from his suicidal situation.
The Court turned down each of those requests. Here is why:
SPOLIATION
The Court ruled that “the metaphysical nature of the never-performed evaluation” does not amount to spoliation. Spoliation remedies are recoverable only in connection with destruction of documents or other evidence.
ALTERNATIVE LIABILITY
The alternative liability doctrine originates from a famous case, Summers v. Tice, 199 P.2d 1 (Cal. 1948). This case involved two hunters each of whom negligently — and independently of the other hunter — fired a single shot in the plaintiff’s direction. One of the two shots severely injured the plaintiff, who had no evidence that could identify the gun from which it was fired. The court shifted the burden of proof to the defendants. Specifically, it held that it is up to each defendant to disassociate his negligent firing from the plaintiff’s injury. Because neither of the defendants was able to show that he did not fire the fatal shot, the court found them liable jointly and severally.
The Almonte Court held that the negligent psychiatrist escapes alternative liability. The Court explained that the alternative liability doctrine only applies in cases featuring two or more tortfeasors of which one definitely harmed the plaintiff. To benefit from this doctrine, the plaintiff must prove that he would have been out of harm’s way if all defendants exercised proper care. The Almonte plaintiffs failed to prove it.
LOST CHANCES
The Court ruled that the plaintiffs failed to present evidence showing that the psychiatrist’s malpractice had increased the patient’s chances to commit suicide. The Court noted in this connection that the “plaintiffs could have presented an expert to testify as to the process that would have taken place after a committal,” but chose not to do so. For that reason, the Court decided that the lost-chance doctrine, not yet recognized in Rhode Island, would be of no help to the plaintiffs.
DISCUSSION
The Court was right about alternative liability but wrong about everything else.
Begin with the spoliation doctrine. There is no difference between a doctor who negligently destroys or fails to keep a record pertaining to his patient’s treatment and a doctor who fails to generate such a record (see, e.g., Smith v. United States, 128 F.Supp.2d 1227 (E.D. Ar. 2000)). By the same token, a doctor commits spoliation when she denies a patient an information-generating procedure to which the patient was entitled. This is exactly what happened in Almonte. For details of this argument, which I call “evidential damage,” see Chapters 6 & 7 of my book with Ariel Porat, Tort Liability Under Uncertainty.
Move now to the lost-chance doctrine. There is every reason to believe that a prompt committal proceeding might have rescued the patient from his suicidal situation. Admittedly, the plaintiffs adduced no evidence that could support this hypothesis, but what evidence could they possibly bring to court? Calling a committal expert as a witness would hardly help: every committal proceeding is an individual affair.
Under such circumstances, the court therefore will do well to assume that the patient’s chance of being saved could be any — an assumption that puts a 50% figure on that chance. For more details, see Tort Liability Under Uncertainty, Chapter 4.
The Court therefore should have awarded the plaintiffs 50% of the total wrongful-death compensation (or more than 50%, depending on the spoliation remedies).