Providence Health Center v. Dowell, No. 05-0386, <br/ >consolidated with,
Pettit v. Dowell, No. 05-0788

Decided: May 23, 2008

The Court split 5-1-3 in this tort-causation case.

Dowell visited a health center after having ingested some pills and attempting to slit his wrist. After a brief consultation that included him signing a “no suicide contract” and agreeing to show up the next Tuesday, the health center released him. About 33 hours later, Dowell committed suicide. A jury found that the medical providers’ conduct had been a contributing cause.

Justice Hecht delivered the opinion of the Court, in which Justice Brister, Justice Green, Justice Johnson, and Justice Willett joined. The Court held that there was “no evidence” of causation, in part relying on the 33 hours that elapsed before Dowell’s suicide. The Court thus reversed and rendered a take-nothing judgment. Four Justices disagreed with the Court’s holding. Justice Wainwright concurred in part and dissented in part. He would have held that there was some evidence to support the jury’s verdict, but he would have reversed and remanded for a new trial because of a jury charge error. Justice O’Neill’s dissent (joined by the Chief Justice and Justice Medina) would also have found that this evidence met the no-evidence standard and would have affirmed the court of appeals’s judgment. The majority suggested three reasons this case fit into the “no evidence/legal sufficiency” framework:

  1. The majority identified an “undisputed” fact that undermined causation;

  2. it criticized the plaintiff’s expert for not being clear enough about whether hospitalization would have made the suicide unlikely or merely less likely; (( “Furthermore, the Dowells’ expert never actually testified that hospitalization, more likely than not, would have prevented Lance’s suicide. … No one supposes hospitalization would have made Lance worse. The issue is whether hospitalization would have made Lance’s suicide unlikely, and the Dowells’ expert rather pointedly did not offer that opinion.” )) and

  3. it indicated that the intervening time was just too long, given the number of other influences and human contacts that the evidence showed during those hours.

The most interesting of these is the first. The majority wrote that:

“In the first place, although the Dowells’ expert testified that many patients will consent to treatment when sternly confronted with the dangers of refusal, there is evidence that Lance himself would not have consented to treatment and no evidence that Providence could have kept Lance from being discharged. … Evidence that a reasonable patient would have consented to treatment might sometimes be enough, but in this case, the undisputed evidence of Lance’s intentions is sufficient to refute the Dowells’ expert testimony of what most patients would do under similar circumstances.”

The dissent criticizes the majority for, in essence, creating a new requirement after the fact and suggests that, in practical terms, it may prove impossible to come up with evidence that would satisfy the test of showing that a patient would have consented to the treatment.

The dissent’s strongest point on this, it seems to me, is the observation that Dowell was not advised to stay at the hospital, so the answer to “what would he have done if so advised?” is by its nature a hypothetical one. Although the dissent doesn’t dwell too long on the point, it would be interesting to see if there are other “undisputed evidence” cases that involve hypothetical or (as in this case) counterfactual facts — as contrasted with facts that might at least in theory be empirically verified.