Causation, Spoliation, Alternative Liability, and Lost Chance in Rhode Island

Almonte v. Kurl, 46 A.3d 1 (R.I. 2012)

All medical malpractice lawyers and students must read Almonte v. Kurl, 46 A.3d 1 (R.I. 2012).

This case features a psychiatric patient who was brought to a psychiatrist for involuntary evaluation and possible committal to a psychiatric hospital 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 approved the trial judge’s decision that the psychiatrist’s failure to open the committal process amounted to malpractice. Yet, the psychiatrist was still 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. Specifically, it ruled that the plaintiffs failed to prove by a preponderance of the evidence that the committal process could have prevented the suicide. This process, the Court explained, is rigorous and does not guarantee a committal in the end. The patient, therefore, could have had the same opportunity to commit suicide even if the psychiatrist were to initiate that process.

The plaintiffs acknowledged that they could not preponderantly establish that the committal process would have led to the patient’s prompt institutionalization. This acknowledgement amounted to an admission that the process may or may not have prevented the patient’s suicide. The plaintiffs, however, argued that the psychiatrist should still pay for the consequences of her negligence. This argument was pretty straightforward. The plaintiffs would not be facing the need to prove the unprovable consequences of the counterfactual “committal process” scenario if the psychiatrist were to open the process. The plaintiffs’ evidential predicament therefore resulted from the psychiatrist’s negligence. Because this negligence resulted in the plaintiffs’ evidential incapacitation, they asked the Court to award them the spoliation remedies or, alternatively, compensation under the “alternative liability” doctrine. As another alternative, the plaintiffs requested compensation for the patient’s lost chances to be rescued from his suicidal situation.

Alas, the Court turned down each of these requests. Here is why:

According to the Court, spoliation remedies are recoverable only in connection with destruction of documents or other evidence. These remedies are not available in cases in which the defendant’s negligence triggers a causally indeterminable harmful event. The Court explained that “the absence of an evaluation of Mr. Almonte by a mental health service reflects negligent care on the part of Dr. Kurl, not the spoliation of evidence” and that the purpose of the spoliation doctrine is “to prevent parties from benefiting from their own unexplained failure to produce certain evidence.” The doctrine’s narrow interpretation, combined with what the Court described as “the “metaphysical” nature of the never-performed evaluation,” led to a decision that denied the plaintiffs the spoliation remedies.

The alternative liability doctrine originates from a celebrated California Supreme Court decision in 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 both defendants liable (jointly and severally).

The Rhode Island Supreme Court held that the facts of the Almonte case preclude the application of the alternative liability doctrine. The Court explained that this doctrine only applies when the plaintiff proves by a preponderance of the evidence that two (or more) defendants acted negligently against him, with one of those defendants being factually certain to have inflicted the plaintiff’s injury if the other defendant did not inflict it. That is, the plaintiff must prove by a preponderance of the evidence that he would have sustained no injury if all defendants exercised proper care. The Almonte plaintiffs failed to prove that the psychiatrist’s proper care—opening the committal process that was far from guaranteeing the patient’s prompt institutionalization—would have prevented the suicide.

The Rhode Island Supreme Court indicated in the past that, “under an appropriate factual scenario,” it will make a precedential ruling on whether a wronged patient’s lost chance to recover from illness or achieve a better medical outcome is actionable in torts (Contois v. Town of West Warwick, 865 A.2d 1019, 1023–27 (R.I. 2004)). The Almonte plaintiffs argued that this case presents such a scenario, but the Court disagreed. According to the Court, the plaintiffs failed to present evidence showing that the psychiatrist’s malpractice increased the patient’s chances to commit suicide. The Court noted that the “plaintiffs could have presented an expert to testify as to the process that would have taken place after a committal,” but have chosen not to do so. For that reason, the Court held that the lost-chance doctrine would be of no help to the plaintiffs even if it were recognized in Rhode Island.

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 diagnosis or 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 he denies a patient an information-generating procedure to which the patient was entitled. This is exactly what happened in the Almonte case. Furthermore, as Ariel Porat and I explain in our book, Tort Liability Under Uncertainty, Chs. 6 & 7 (Oxford University Press, 2001), a doctor who denies a patient proper treatment oftentimes commits an additional wrong: she deprives the patient of the valuable information about the effects of that treatment. This deprivation is conceptually similar to a doctor’s failure to make a medical record that could inform the patient about the course and the consequences of treatment he received. The doctor consequently should assume liability for spoliation under both scenarios.

As far as lost chances are concerned, it is only reasonable to assume that a prompt committal proceeding could improve the patient’s chances to be rescued from his suicidal situation. The patient could have been institutionalized quickly enough had the requisite proceeding been opened. The proceeding’s complete absence undeniably widened the patient’s opportunity to commit suicide. Admittedly, the plaintiffs presented no evidence that could allow factfinders to calculate the increase of this opportunity, but what evidence could they possibly present? Bringing as a witness an insider to Rhode Island’s committal process would hardly provide the required information: presumably, every committal proceeding is an individual affair that presents factually unique circumstances. For that reason, I also do not think that the patient’s lost chances could be extrapolated from the committal statistics of Rhode Island.

More fundamentally, given that the psychiatrist wronged the patient, I believe that the court should have judicially noticed the fact that the patient was denied an opportunity to be promptly hospitalized against his will and rescued from the suicidal crisis. Absence of evidence upon which factfinders could estimate how big this opportunity was should have led the court to assume that the unavailable evidence is not slanted in either direction and that the patient’s lost chances could therefore be any. Under this assumption, the negligent psychiatrist should have been deemed to have denied the patient a 50% chance of surviving the crisis.