The opinion of the court was delivered by: Justice Heiple:
Agenda September 24, 1998.
The primary question presented by this appeal is whether a decedent's contributory negligence may be raised as a defense in a wrongful death suit brought against a physician whose patient commits suicide while under mental health treatment. The answer is yes.
FACTUAL AND PROCEDURAL HISTORY
Mildred Hobart filed this case in the circuit court of Cook County after her daughter, Kathryn, committed suicide by taking an overdose of Doxepin, a prescribed antidepressant medication. At the close of trial, the jury returned a verdict in favor of the defendant, Daniel C. Shin, M.D. The appellate court reversed and remanded for a new trial, holding that the circuit court improperly allowed defendant to file an affirmative defense alleging Kathryn's contributory negligence. 292 Ill. App. 3d 580. We granted defendant's petition for leave to appeal. 166 Ill. 2d R. 315.
The following facts were adduced at trial. In 1988, defendant was a family practice physician employed at the University of Illinois- Chicago's student health facility. On August 9, 1988, Kathryn Hobart, a 27-year-old student at the University, sought treatment from defendant, who was assigned as her primary care physician. During this appointment, Kathryn reported that she had recently been experiencing fatigue, changing moods, loss of appetite, irritability, dizziness, nausea, and breathing difficulty. Kathryn denied that she had thoughts of committing suicide. Defendant diagnosed Kathryn as suffering from general anxiety disorder. On August 18, defendant saw Kathryn again, and observed that she was feeling better and her mood was stable. On September 21, Kathryn had defendant examine a sore spot in her breast, but she did not mention her mental condition. On October 26, Kathryn saw another doctor at the clinic for a sore throat.
On November 21, Kathryn's mother, Mildred, telephoned defendant and reported that Kathryn was panicked and could not sleep. Mildred also said that Kathryn had been seen by the Hobart's family physician, who prescribed an antianxiety medication and recommended that she be examined by a psychiatrist. Defendant authorized Kathryn to see a psychiatrist at Hinsdale Hospital that day. The next day, November 22, defendant spoke over the phone to the psychiatrist at Hinsdale who had seen Kathryn. The psychiatrist told defendant that Kathryn had a long- term history of depression and panic attacks. The Hinsdale psychiatrist did not believe that Kathryn was suicidal, but recommended that she receive psychotherapy.
Later that day, defendant saw Kathryn in his office. Defendant noted that Kathryn could not stand, had no appetite, had difficulty sleeping, was worried about failing in school, and was experiencing general hopelessness and insecurity. Defendant was concerned that Kathryn might be having suicidal thoughts, and was aware that she had attempted suicide on two occasions approximately seven years earlier. Defendant recommended that Kathryn be hospitalized, but she refused. Defendant agreed instead to have her see a psychologist at the student counseling service. Kathryn went immediately to the counseling service, and after an hour or so, returned to defendant's office with a psychologist. The psychologist reported that, after some Discussion, Kathryn had agreed to be hospitalized. Kathryn was admitted to the University of Illinois Hospital on November 23.
Dr. Rachel Fargason, a psychiatrist, treated Kathryn during her hospital stay. Although Kathryn was admitted under suicide precautions, Fargason lifted those precautions after the initial examination because she did not believe Kathryn posed a suicide risk. Fargason diagnosed Kathryn as suffering from recurrent major depression, and prescribed Doxepin, an antidepressant. On December 12, Kathryn was no longer displaying symptoms of depression, and she was discharged.
After Kathryn left the hospital, she saw defendant only once, on December 21. Defendant noted that Kathryn was smiling and upbeat, had no thoughts of hopelessness or suicide, and talked of her plans to become a teacher. Kathryn expressed concern about running out of medication and about the cost of filling small prescriptions frequently. Accordingly, defendant wrote Kathryn a prescription for 90 Doxepin pills of 50 milligrams each, a one-month supply, with one refill.
Fargason saw Kathryn on a weekly basis after she left the hospital. During three separate visits, on December 16, 23, and 30, Kathryn displayed no signs of depression and no active or passive suicidal tendencies. Fargason testified that although defendant did not notify her when he prescribed Kathryn additional medication on December 21, such notification between treating doctors would have been unusual and unnecessary for a prescription refill.
On January 4, 1989, after Kathryn's backpack containing her school notes was stolen, she became severely depressed. Her mother urged her to contact her doctors, but she refused because she did not want to be hospitalized again. On January 6, Kathryn was found dead in a motel room in which she had registered under a fictitious name. She had ingested approximately 224 Doxepin pills of 25 milligrams each, for a total of 5,600 milligrams. A lethal dose is 500 milligrams.
At the Conclusion of the evidence, the court denied plaintiff's request to instruct the jury on the issue of contributory negligence using a nonpattern jury instruction. The court instead instructed the jury on contributory negligence pursuant to Illinois Pattern Jury Instructions, Civil, Nos. B10.03, 10.02 (3d ed. 1995) (hereinafter IPI Civil 3d). The jury returned a verdict for defendant.
On appeal, the appellate court reversed the judgment and remanded for a new trial, holding that the affirmative defense of contributory negligence is inappropriate in a wrongful death suit brought against a physician whose patient commits suicide while under treatment for mental health. 292 Ill. App. 3d at 588. The appellate ...