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Stanphill v. Ortberg

Court of Appeals of Illinois, Second District

October 31, 2017

ZACHARY STANPHILL, Administrator of the Estate of Keith Stanphill, Deceased, Plaintiff-Appellant,
LORI ORTBERG, Individually and as an Agent of Rockford Memorial Hospital, d/b/a Rockford Memorial Health Systems; and ROCKFORD MEMORIAL HOSPITAL, d/b/a Rockford Memorial Health Systems, Defendants-Appellees.

         Appeal from the Circuit Court of Winnebago County. No. 14-L-35 Honorable J. Edward Prochaska, Judge, Presiding.

          SCHOSTOK JUSTICE delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.



         ¶ 1 The defendant, Lori Ortberg, performed a suicide screening of Keith Stanphill and determined that Stanphill was not at imminent risk of harming himself. Nine days after that screening, Keith killed himself. The plaintiff, Zachary Stanphill, Keith's son and the administrator of his estate, filed a wrongful death and survival action against Ortberg and her employer, Rockford Memorial Hospital. Following a jury trial, the jury returned a general verdict in the plaintiff's favor and awarded almost $1.5 million in damages. The jury, however, also answered in the negative a special interrogatory that asked whether Ortberg could reasonably foresee that Keith would commit suicide nine days after his meeting with her. The trial court entered judgment in favor of the defendants, based on the special interrogatory answer. The plaintiff appeals, arguing that the jury's answer to the special interrogatory was not irreconcilable with the general verdict or, alternatively, that the special interrogatory should never have been given. We reverse and remand with directions.

         ¶ 2 BACKGROUND

         ¶ 3 Between May 24 and June 2, 2016, the trial court conducted a jury trial on the plaintiff's complaint. The relevant portions of that trial are summarized below.

         ¶ 4 In the last month of his life, Keith's physical and psychological condition deteriorated substantially, based on his concerns that his wife, Susan, was having an extramarital affair. At the time of his suicide, he and Susan were no longer sleeping in the same house. From late August until September 30, 2005, he had lost nearly 15 pounds, he walked around in a lethargic state, he was pale, and his eyes were sunken. He was slipping in his performance at work as a car salesperson, and he had effectively withdrawn his participation in the church of which he had been a lifelong member. Susan believed he needed help and arranged for him to see a counselor through the Employee Assistance Program (EAP) at Rockford Memorial Hospital, which was a benefit provided under her health insurance plan through the Rockford School District.

         ¶ 5 On September 30, 2005, Keith met with Ortberg, a licensed clinical social worker who was employed by Rockford Memorial Hospital. Ortberg's responsibilities included assessing whether her patients posed threats of imminent suicide or potentially lethal violence. Ortberg had Keith complete a questionnaire as to his psychological condition. On that questionnaire, Keith indicated that he had (1) feelings of harming himself or others most of the time; (2) feelings of sadness most of the time; (3) sleep changes most of the time; (4) appetite changes all of the time; (5) feelings of anxiety, nervousness, worry, and fear all of the time; (6) sudden unexpected panic attacks most of the time; and (7) feelings of being on the verge of losing control most of the time. Keith also indicated on the questionnaire that he was seeing a primary care physician for "mood."

         ¶ 6 At trial, Ortberg testified that she had no specific recollections of Keith other than what was reflected in her chart of his meeting with her. Her chart indicated that Keith denied having ideas of suicide or a plan of how he would commit such an act. Her chart also indicated that he had lost weight and was taking an anti-depressant. She was not able to reconcile the conflict between Keith's answers to the questionnaire, indicating that he had thoughts of harming himself, and her conclusion in her chart that he did not have ideas of suicide. Her chart did not indicate (1) how much weight Keith had lost over what period of time, (2) what his eating or sleeping disturbances entailed, (3) any trouble he was having at work, or (4) how he physically presented himself. Ortberg acknowledged that issues involving sleep, appetite, work life, changes in mood, and changes in concentration or focus were all signs of depression that could lead someone to being suicidal.

         ¶ 7 Ortberg diagnosed Keith with adjustment disorder with depressed mood and referred him to a marriage counselor. Ortberg acknowledged that Keith's answers to the self-assessment questionnaire were indicators of depression. She further acknowledged that major depression is much more severe than adjustment disorder with depressed mood and that there is a correlation between major depression and suicide.

         ¶ 8 Ortberg testified that, when she determines that a patient is suicidal, the standard of care requires certain actions on her part. Specifically, she would (1) not let the patient leave her office, (2) call a family member and have them pick up the patient and take them to an emergency room and explain the situation, and (3) if a family member could not be contacted, call 911 or the police and take whatever steps are necessary to get the patient to the emergency room to be evaluated. Ortberg acknowledged that she took none of those steps in Keith's case.

         ¶ 9 On October 4, 2005, Susan called the EAP office to confirm that Keith had scheduled an October 11 appointment with the marriage counselor whom Ortberg had recommended. However, on October 9, 2005, Keith was found dead on the floor of his garage with his car ignition on and the gas tank empty. He left a suicide note, attaching copies of romantic e-mails between Susan and her coworker. An autopsy determined that Keith had died from asphyxia resulting from acute carbon monoxide poisoning.

         ¶ 10 Keith's estate filed a wrongful death action against Ortberg and Rockford Memorial in 2007 and then refiled it on February 7, 2014. At trial, both parties called experts in the area of social work and psychiatry to review the counseling that Ortberg had provided Keith.

         ¶ 11 Daniel Potter, a licensed clinical social worker for 22 years, testified as an expert for the plaintiff. He testified that Ortberg breached the standard of care by failing to recognize that Keith was suicidal. Ortberg failed to do a proper mental health evaluation, lethality assessment, and mental status exam. Potter testified that, had Ortberg performed a proper mental health assessment, she would have recognized that Keith was suicidal-thus triggering a duty to take immediate action. Potter further testified that Ortberg had breached the standard of care by misdiagnosing Keith as having adjustment disorder, when in fact he had major depression. Potter explained that there is a high correlation between major depression and suicide. Potter believed that Ortberg's misdiagnosis of adjustment disorder was the reason she failed to recognize that Keith was suicidal.

         ¶ 12 Terri Lee, a licensed clinical social worker, testified as a defense expert. She stated that Ortberg conducted a thorough assessment and complied with the standard of care for a reasonably careful licensed clinical social worker in her one-hour counseling session with Keith. Lee believed that Keith was not suicidal on the day he met with Ortberg. This was evident because he scheduled a follow-up date with the counselor whom Ortberg had recommended. Lee testified that someone who is planning to kill himself does not make an appointment for a future date.

         ¶ 13 Dr. David Bawden, the plaintiff's expert psychiatrist, testified that he had been practicing for 37 years and evaluated 10 to 20 people per day for suicidal risk. He worked in psychiatric hospitals and had been called into emergency rooms to evaluate patients for suicidal risk and involuntary admission. He had extensive training in what happens when there is a referral to an emergency room, a psychiatrist, or a psychiatric facility and the evaluation that must be conducted for involuntary admission.

         ¶ 14 Dr. Bawden testified that he agreed with Potter's opinions concerning Ortberg's failure to recognize Keith as suicidal, her misdiagnosis of his level of depression, and her failure to properly assess his mental health. Dr. Bawden testified that each of those failures, individually, was a proximate cause of Keith's death. He believed that Keith had a high risk of suicide on September 30, 2005, and that, had he been referred to an emergency room or a psychiatrist or a psychiatric facility, his suicide could have been prevented. He explained that the vast majority of persons who are suicidal and treated, whether on voluntary or involuntary admission, ultimately are released safely. He testified that Ortberg's failure to properly refer Keith to an emergency room or a psychiatrist was a cause of Keith's death.

         ¶ 15 Dr. Steven Hanus, the defendants' expert psychiatrist, testified that it was not reasonably foreseeable to Ortberg on September 30, 2005, that Keith would kill himself on or before October 9, 2005. He believed that Keith was not at imminent risk of harming himself, because (1) Ortberg specifically documented that Keith had no ideas of suicide; (2) he had not made a suicide attempt before; (3) there was no family history of suicide; (4) the EAP documentation demonstrated that Keith was working; (5) he was religious and receiving pastoral care; (6) he was living with his in-laws, with whom he had a close relationship; (7) he was seeing his children every day; (8) he was keeping up with his hygiene; (9) at the end of the EAP session, he had agreed to outpatient therapy; and (10) he had actually scheduled a follow-up appointment. Dr. Hanus believed that someone who was suicidal would not schedule a follow-up counseling appointment for some future date. Dr. Hanus opined that, even if Ortberg had referred Keith to a psychiatrist or an emergency room on September 30, 2005, Keith's suicide would not have been foreseeable to a psychiatrist or to hospital personnel on that date, for the same reasons that Keith's suicide was not foreseeable to Ortberg.

         ¶ 16 At a jury instruction conference, the defendants asked the court to submit a special interrogatory to the jury regarding the foreseeability of Keith's suicide. The interrogatory read as follows:

"Was it reasonably foreseeable to Lori Ortberg on September 30, 2005 that Keith Stanphill would commit suicide on or before October 9, 2005?" The defendants drew the wording of the interrogatory from Garcia v. Seneca Nursing Home, 2011 IL App (1st) 103085. The plaintiff objected to the interrogatory, arguing that Keith's death was "not reasonably foreseeable under [the plaintiff's] theory in the case to Lori Ortberg because she didn't do a full assessment, she didn't do the right diagnosis, *** she didn't do the job [and] [s]he didn't meet the standard." As the jury could reasonably answer the special interrogatory "no" based on a finding that Ortberg had breached the standard of care, the plaintiff maintained that the ...

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