Molchon v. Tyler

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

2
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

3
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

5
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.”
6
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.”

7
 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

8
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

9
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.”

10
 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.

11
 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).
12