Present: All the Justices
ANDREW MOLCHON, M.D.
OPINION BY
v. Record No. 002010 JUSTICE LAWRENCE L. KOONTZ, JR.
June 8, 2001
SANDRA P. TYLER, AS ADMINISTRATRIX OF THE
ESTATE OF MICHAEL TYLER (DECEASED), ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge
In this appeal, we consider whether the trial court
properly confirmed a jury verdict in favor of the plaintiffs in
a wrongful death action alleging medical malpractice in the
negligent discharge of a psychiatric patient who subsequently
died as a result of gunshot wounds inflicted by police officers
in circumstances which the parties agree were the equivalent of
suicide.
BACKGROUND
“According to settled principles of appellate review, we
will consider the evidence in the light most favorable to the
plaintiff, who comes to this Court armed with a jury verdict
approved by the trial judge.” Salih v. Lane, 244 Va. 436, 438,
423 S.E.2d 192, 194 (1992).
The decedent, Michael Lee Tyler, had a 20-year history of
depression and substance abuse. Following the death of his
father from cancer in December 1993, Tyler became severely
depressed and began to drink heavily. Tyler was admitted to
Dominion Hospital on May 5, 1994. Dr. Andrew Molchon, a
psychiatrist, was Tyler’s admitting and treating physician.
Although Molchon determined that, once stabilized through
inpatient treatment, Tyler would benefit from placement in a
“structured residential situation,” Tyler was discharged from
Dominion Hospital on May 10, 1994, without directions to enter a
structured program. Tyler subsequently failed to keep a
psychiatric outpatient appointment scheduled for him on
Molchon’s orders.
On May 14, 1994, Tyler attempted to commit suicide.
Following his suicide attempt, Tyler was treated at Fairfax
Hospital and was then transferred to Dominion Hospital on May
16, 1994, where he was again placed under Molchon’s care.
Molchon’s admitting diagnosis reflects that Tyler was suffering
from “[d]epression . . . most likely major depression . . .
[a]lcohol dependence . . . [p]robable personality disorder of
mixed type . . . overdose of multiple medications and self-
inflicted lacerations of both wrists.”
On May 18, 1994, Molchon’s progress notes for Tyler state:
“I think that it is absolutely necessary for [Tyler] to have a
structured living situation after discharge.” (Emphasis added).
The following day, Molchon noted that Tyler “report[ed]
continuing suicidal ideation but [had] no fixed plan at this
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time.” Molchon’s progress notes then state: “The problem is
that without a structured living situation . . . it is unlikely
that [Tyler] will be able to maintain sobriety for more than a
few days at most. If he drinks, he will be a very high suicidal
risk (as demonstrated by recent attempt).” (Emphasis added).
Over the course of the next several days, Tyler failed to
respond satisfactorily to treatment and repeatedly indicated to
hospital staff that he was “not ready” to be discharged because
he was “not [yet] safe.” Although various options for
discharging Tyler to another psychiatric hospital or structured
living situation were considered, no suitable facility had space
immediately available. Molchon’s progress notes during this
period continue to emphasize the need to discharge Tyler to a
structured living situation.
On May 23, 1994, Molchon determined that Tyler was
“clinically no longer in need” of hospitalization, but
acknowledged that the “[p]roblem now is finding an adequately
structured living situation since without this he would be at
risk for relapse into drinking.” The following day, Tyler again
expressed his concern that he was “not ready” to leave the
hospital and his fear that he would relapse into alcohol abuse
and again attempt suicide. Referring to this statement,
Molchon’s progress notes state: “My assessment of situation is
that [Tyler] is using hospital[ization] inappropriately [and] is
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using the spectre of further suicide attempts [and] relapse” to
avoid being discharged. However, noting Tyler’s history of
suicide attempts, Molchon decided to seek a second opinion as to
Tyler’s “readiness for [discharge].”
On May 26, 1994, Molchon’s progress notes reflect his view
that Tyler’s “[treatment] plan is at stalemate.” Tyler’s social
worker at Dominion Hospital arranged for Tyler to have a pre-
admission interview at the Northern Virginia Mental Health
Institute (NVMHI). However, Molchon cancelled Tyler’s pass to
leave the hospital to attend this interview, apparently out of
concern that the two or three day waiting period for admission
to NVMHI was incompatible with his plan to discharge Tyler as
soon as possible and because Molchon did not “believe . . . that
[Tyler] is [a] danger to self/or others” so as to meet the
requirements for admission to NVMHI.
Molchon further indicated that he had discussed Tyler’s
case with the doctor from whom he had sought a second opinion,
and that “it [was Molchon’s] understanding” that this doctor
agreed that Tyler did not need further acute, inpatient
hospitalization. Nonetheless, Molchon delayed making a final
decision to discharge Tyler “over [Tyler’s] protest” out of
concern that there was a “risk that [Tyler] may ‘act out’ in
order to get back into the system.”
4
On May 27, 1994, Tyler’s social worker arranged for him to
have a pre-admission interview on June 3, 1994 for residential
treatment at one of two facilities operated by Loudoun County
Mental Health Services. The social worker advised Tyler that,
in the interim between his discharge and this interview, he
could seek assistance through an emergency services telephone
line and that he should attend Alcoholics Anonymous meetings.
Tyler indicated to the social worker that he might “sleep in his
van” following discharge. Molchon’s progress notes for that day
indicate that Tyler had “reached MHB,” meaning that he had
reached the “maximum hospital benefit” provided by his insurance
coverage and directed that he should be “discharg[ed] tomorrow —
follow up plan as described above,” apparently referring to the
social worker’s notes.
Molchon had no further contact with Tyler after May 27,
1994. On May 29, 1994, Tyler was discharged from Dominion
Hospital on the order of Molchon’s partner, who was on call for
Molchon during the Memorial Day holiday weekend.
Late in the evening of May 30, 1994, after having attended
an Alcoholic Anonymous meeting, Tyler went to the apartment of
Sandra Tyler, his estranged wife. Tyler was distraught and
indicated to his wife that he wanted to be readmitted to
Dominion Hospital, saying that he did not “feel safe.” Tyler’s
wife contacted the hospital and CMG, Tyler’s medical insurance
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carrier, but was advised that Tyler was not eligible for further
inpatient treatment. Tyler became agitated and attempted to cut
his wrists with a knife. He then barricaded himself in the
bathroom.
Lieutenant John B. Patton, another police lieutenant, and
two deputies of the Loudoun County Sheriff’s Office arrived at
the apartment in response to a telephone call from Tyler’s wife.
After two or three hours, Tyler emerged from the bathroom
brandishing the knife and began to “scream and yell” at the
deputies. Tyler’s behavior was erratic; one moment calm and the
next highly agitated. Tyler repeatedly asked the deputies to
shoot him. Still brandishing the knife, Tyler rushed Lt.
Patton, who fired his service weapon six times, killing Tyler.
Although Tyler’s wife testified that her husband did not appear
to be intoxicated, an autopsy revealed that Tyler’s blood
alcohol level was .18 at the time of his death.
On April 7, 1999, the plaintiffs filed a wrongful death
suit alleging that Molchon’s discharge of Tyler from Dominion
Hospital violated the applicable standard of care and was a
proximate cause of Tyler’s death. 1 Following a jury trial in
1
Sandra Tyler filed suit in her capacity as administratrix,
personal representative, and next friend of Tyler’s minor
children, and on behalf of herself and other statutory
beneficiaries. We will refer to all of these parties
collectively as “plaintiffs.”
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which the trial court received evidence in accord with the
above-recited facts, the jury returned its verdict in favor of
the plaintiffs and awarded $1,304,456 in damages. The verdict
included jury interrogatories in which the jury expressly stated
that it found Tyler to have been of unsound mind at the time of
his death and that Molchon’s negligence was a proximate cause of
Tyler’s death. In a final order dated May 19, 2000, the trial
court confirmed the jury’s verdict and reduced the award to
$875,000, reflecting the statutory cap on recoveries for medical
malpractice actions, Code § 8.01-581.15, and a credit under Code
§ 8.01-35.1 for amounts already received in a settlement with
the hospital.
Because Molchon’s appeal of this judgment is limited to
certain discrete issues, we will recite other relevant facts and
proceedings within the discussion of the assignments of error.
DISCUSSION
At the outset, we note that Molchon has not assigned error
to the issue whether his treatment fell below the applicable
standard of care and, thus, that he was negligent in discharging
Tyler without assuring that Tyler would be immediately placed in
a structured living situation. Furthermore, both parties
concede that Tyler’s assault on Lt. Patton was committed with
the intent of provoking a lethal response and, thus, was, in
their terms, a “suicide by cop.”
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In his first assignment of error, Molchon contends that the
trial court erred in failing to strike the plaintiffs’ evidence
on the ground that Tyler’s conduct, whether considered an
assault or a suicide, was an illegal act which resulted in his
death and, thus, bars any recovery in tort. Molchon asserts
that although the evidence showed that Tyler was legally
intoxicated at the time of his death, voluntary intoxication is
not a defense to his illegal act of suicide, and was not
evidence that Tyler was of unsound mind at that time.
In the abstract, Molchon’s contention that a plaintiff may
not recover for an injury received as the result of another’s
negligence if the plaintiff voluntarily was involved in an
illegal act at the time the injury occurred is a correct
statement of law. See Lee v. Nationwide Mutual Insurance Co.,
255 Va. 279, 282, 497 S.E.2d 328, 329 (1998); Miller v. Bennett,
190 Va. 162, 164-65, 56 S.E.2d 217, 218 (1949). Molchon
concedes, however, that if the illegal act in question is the
victim’s suicide, and the suicide was the result of the victim
being of unsound mind at the time of his death, the defense of
illegality will not bar recovery. See Wackwitz v. Roy, 244 Va.
60, 65-66, 418 S.E.2d 861, 865 (1992).
Molchon’s argument on this issue is directed entirely to
the fact that Tyler was voluntarily intoxicated at the time of
his death. However, there is considerable evidence in the
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record supporting the conclusion that, for reasons unrelated to
his intoxication, Tyler was of unsound mind at the time he
assaulted Lt. Patton in an effort to commit suicide. In
addition to the testimony offered by several experts on behalf
of the plaintiffs, Molchon’s own diagnosis of Tyler during the
time he was under Molchon’s care establishes that Tyler suffered
from multiple psychological conditions. Thus, the evidence
amply supported submission of the issue as to whether Tyler was
of unsound mind at the time of his death to the jury.
Molchon’s second assignment of error states:
The trial court erred in its jury instruction on
unsound mind as it was not an accurate or correct
statement of the law as intoxication is not evidence
of unsound mind.
On brief, Molchon contends that the trial court’s
“instruction of unsound mind did not state that Mr. Tyler, due
to disease of mind, had an irresistible impulse to kill himself
(the criminal act at issue in this suicide case) but rather that
he had an irresistible impulse to drink.” He further contends
that “[u]nder the Circuit Court’s instruction, every alcoholic
who had an irresistible impulse to drink would be permitted to
argue insanity as a defense to any crime.”
The portion of the jury instruction upon which Molchon
relies provided that the jury could find that Tyler was of
unsound mind if “he was unable to resist the impulse to engage
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in the behavior that led to his death.” Nothing in this
instruction, or in any of the other instructions proffered by
the plaintiffs and approved by the trial court on the issue of
Tyler’s mental state at the time of his death, addresses the
issue of Tyler’s intoxication. Molchon’s reading of the
instruction is premised on his contention that the plaintiffs
relied solely on Tyler’s intoxication as the basis for his
behavior on the night of his death, a premise that we have
already demonstrated is not supported by the record. Moreover,
Molchon proffered and the trial court approved an instruction
which expressly stated that “the fact of intoxication is not in
and of itself evidence of a person’s unsoundness of mind.”
Accordingly, we find no merit in Molchon’s contention that the
trial court erred in instructing the jury on this issue.
In his third assignment of error, Molchon contends that the
trial court erred in failing to strike the plaintiffs’ evidence
on the ground that there was insufficient evidence that his
negligence was a proximate cause of Tyler’s death. Molchon’s
position, as stated in the assignment of error, is again
premised on his contention that “the decedent’s intoxication was
the direct cause of decedent’s death” and that “even had the
alleged negligent act not occurred, the same opportunity for
drinking would have occurred.”
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Even apart from the reasons we have already given for
rejecting Molchon’s premise that Tyler’s death could have
resulted from no other cause than Tyler’s being intoxicated, we
find no merit in this assignment of error. There may be more
than one proximate cause of an event. Panousos v. Allen, 245
Va. 60, 65, 425 S.E.2d 496, 499 (1993). Moreover, when the
evidence does not wholly exclude a defendant’s negligence as a
contributing cause of the plaintiff’s injuries as a matter of
law, proximate causation becomes a question of fact for the
jury’s determination. See Brown v. Koulizakis, 229 Va. 524,
531-32, 331 S.E.2d 440, 445 (1985).
Here, the evidence showed that Molchon was acutely aware of
Tyler’s suicidal tendencies and the likelihood that he would
suffer a relapse if he were not properly supervised upon his
discharge from Dominion Hospital. This evidence alone raised a
jury question whether Molchon’s allowing Tyler to be discharged
was a proximate cause of his suicide less than 48 hours later.
Accordingly, we hold that the trial court did not err in
overruling Molchon’s motion to strike the plaintiffs’ evidence
on this ground.
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CONCLUSION
For these reasons, the judgment of the trial court will be
affirmed. 2
Affirmed.
2
Molchon also contends that the trial court erred in ruling
during pre-trial motions that he could not present evidence that
Tyler’s insurance carrier improperly denied coverage for his
request to be readmitted to Dominion Hospital on the night of
his death. However, the argument Molchon makes on brief does
not relate to the basis of the objection he made at the time of
the ruling to which he has assigned error. Rather, the argument
is one that was subsequently raised in a post-trial motion to
set aside the verdict. Molchon has not assigned error to the
trial court’s denial of that motion, and, indeed, he makes no
reference on brief to this aspect of the trial whatsoever.
Accordingly, the argument was not the basis of “the objection
. . . stated with reasonable certainty at the time of the
ruling” to which the assignment of error relates, and we will
not consider that argument as a basis for reviewing that ruling.
Rule 5:25; Cardinal Holding Co. v. Deal, 258 Va. 623, 629, 522
S.E.2d 614, 618 (1999). Similarly, we will not consider
Molchon’s further contention, made within the same argument,
that the trial court erred in giving a “concurrent negligence”
instruction, since this argument bears no relation to this or
any other assignment of error. Rule 5:17(c).
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