Garby v. George Washington University Hospital

886 A.2d 510, 2005 D.C. App. LEXIS 538, 2005 WL 2778756

• Court: District of Columbia Court of Appeals
• Decided: October 27, 2005
• Docket: 03-CV-960
• Status: Published

Opinions

FARRELL, Associate Judge:

Pirjo K. Garby brought this wrongful death and survival action following the suicide of her husband, Michael Garby.¹ Mr. Garby took his own life approximately six hours after his discharge from the Emergency Room of the George Washington University Hospital (“the Hospital”) during the night of November 7-8, 1998. Mrs. Garby contends that her husband’s suicide was proximately caused by the professional negligence of the Hospital and of Jeffrey S. Akman, M.D., who was the decedent’s attending psychiatrist.

Following a trial in February and March of 2003, the jurors were unable to agree upon a verdict and the judge declared a mistrial. In a subsequent written order, however, he granted the defendants’ motion for judgment as a matter of law, concluding among other things that the evidence was insufficient to reasonably permit a verdict by a jury that any negligence of the defendants had proximately caused Mr. Garby’s death.

On appeal, Mrs. Garby argues that the defendants breached the applicable standard of care in several respects, chiefly in that although they were aware that the decedent was depressed and mentally ill and that he had reported recent plans to commit suicide by jumping off a bridge, they released him to go home with his wife without apprising her of his suicidal ideation. She contends that Mr. Garby’s leap to his death from his eighth floor balcony hours after leaving the hospital, while she was in the shower, was proximately caused by the defendants’ professional negligence. For the reasons that follow, we agree with the trial judge that the evidence was insufficient to support a reasonable inference by a jury that the alleged negligence of the defendants proximately caused Mr. Gar-by’s death.

I.

On Saturday, November 7, 1998, Mr. Garby, an electrical engineer, was in a depressed and seemingly paranoid frame of mind, believing that he might be in legal trouble and that numerous persons, including his wife, were conspiring against him. On the previous day he had gone to see his attorney, who later testified that during their meeting Mr. Garby exhibited such nervousness, and so lacked any sense of proportion, that his manner “could be described as bordering on delusion.” In the days before his death, Mr. Garby’s suspicions had intensified, as he believed, among other things, that waiters, bartenders, and his wife were working for the police in an effort to set him up for copyright infringement,² and that the police were tapping every telephone he used. As a result of his concern about the supposed interception of his conversations, Mr. Gar-by made calls from various telephones to his sister, Ruth Torres, a police detective in Connecticut. After Mr. Garby had made some twenty calls to Ms. Torres in a single day, she urged him to seek medical assistance. Michael Garby’s other sister, a nurse, provided similar advice, as did his' wife. Ultimately, Mr. Garby agreed to follow the women’s suggestions.

On the evening of November 7, Mr. Garby presented himself at the Hospital’s Emergency Room. His wife accompanied him, but at his request she was not present in the room when he described his problems to the physicians. Mr. Garby reported to Emergency Room personnel that he was, or had been, experiencing anxiety, persecutory delusions, and suicidal thoughts. Craig Norris, M.D., the first doctor to examine Mr. Garby, noted in Mr. Garby’s chart that the patient “had been feeling anxious and paranoid [at] work [and at] home for [the] past 2+ weeks (maybe more) and more depressed [and had] some suicidal ideation + plan to jump off bridge.” Tenagne Haile Mariam, M.D., the supervising physician in the Emergency Room, also interviewed Mr. Garby and wrote in his chart that the patient was suffering from “mild paranoia & depression — ‘whole world is against me,’ has thoughts of suicide — ‘to jump off a bridge’ — but no other more concrete plan.”

Dr. Mariam referred Mr. Garby to a psychiatric resident, Alfredo F. Soto, M.D., who spoke with Mr. Garby in some detail. Dr. Soto noted, after examining Mr. Gar-by, that the patient reported legal problems which he refused to describe in his wife’s presence. Dr. Soto wrote that the patient “notes recent [increasing] hopelessness because of [the legal problems],” and that “from this hopelessness, he has had some SI³ w/ plan to jump off bridge.” According to Dr. Soto’s notes, “[h]is wife, who is unaware of his concerns w/ legal prob’s, has noted [greater] paranoid ideation X2 days with [greater] awareness of persecutory feelings/concerns on her husband’s part.” Neither Mr. Garby nor the physicians told Mrs. Garby of his suicidal thoughts.

Initially, both Dr. Soto and Mrs. Garby believed that Mr. Garby should remain in the Hospital. Mrs. Garby did not want her husband to sign a document in which he agreed to be released to go home, but despite the advice of the doctors, Mr. Gar-by stated that he wanted to go home. Dr. Soto telephoned Dr. Akman, the attending psychiatrist who was Dr. Soto’s superior, at Dr. Akman’s home and the two physicians discussed the case for some time. Dr. Soto ultimately wrote in Mr. Garby’s record:

As pt does not meet full criteria for involuntary hospitalization, he has agreed (as has his wife) to be observed by his wife over next 24^8 hours. Both have agreed to call both insurance co. and our outpatient clinic to obtain urgent F/U w/in next wk. Attending (Dr. Akman) agrees.

Mr. Garby was released from the Emergency Room between 2:30 and 3:00 a.m.; his wife was given a prescription for sleeping pills (Ambien) for her husband. According to Mrs. Garby, Dr. Soto told her that “it was my responsibility for the [next] 48 hours” to keep an eye on her husband. The couple then left the Emergency Room and walked home without having the prescription filled.

Mr. and Mrs. Garby went to bed at approximately 3:30 or 4:00 a.m. on Sunday, November 8. Mr. Garby woke up at about 7:00 a.m. After he and his wife had breakfast, Mrs. Garby decided to be the first to take a shower. When she came out of the shower, she discovered, to her horror, that her husband had leaped to his death from the eighth floor balcony of their apartment.

In his written order of July 21, 2003, the trial judge entered judgment as a matter of law in favor of the defendants. He first concluded that, “according to the evidence in the case, defendant doctors adhered to the standard of care required of them, and provided adequate aid and treatment under the circumstances.” Although, in the judge’s view, this conclusion mooted the issue of proximate causation, he went on to conclude alternatively that Mrs. Garby’s position that the defendants had proximately caused Mr. Garby’s suicide “amounted to mere speculation” and rested on insufficient evidence to meet her burden of proof by a preponderance of the evidence on that issue.

II.

We agree with the trial court that Mrs. Garby failed as a matter of law to prove that any negligence attributable to the defendants proximately caused the death of her husband. That being so, we need not. resolve the parties’ dispute over whether Mrs. Garby’s medical expert, Dr. Cavanaugh, correctly defined a national standard of care allegedly breached by the defendants. We assume arguendo that in one or more respects Dr. Cavanaugh was correct (or that a jury could properly so find) in opining that the emergency room physicians failed to exercise reasonable care in the manner by which they treated or discharged Mr. Garby. Even so, Mrs. Garby was required to “introduce evidence ... afford[ing] a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendants] was a substantial factor in bringing about the [death of her husband; a] mere possibility of such causation is not enough; and [if] the matter remained] one of pure speculation or conjecture, or the probabilities [were] at best evenly balanced, it [became] the duty of the court to direct a verdict for the defendants].” Gordon v. Neviaser, 478 A.2d 292, 296 n. 2 (D.C.1984). See also Talley v. Varma, 689 A.2d 547, 552 (D.C.1997) (“To establish causation, the plaintiff must present evidence from which a reasonable juror could find that there was a direct and substantial causal relationship between the defendant’s breach of the standard of care and the plaintiffs injuries, and that the injuries were foreseeable.”); Twyman v. Johnson, 655 A.2d 850, 854 (D.C.1995) (directed verdict required where a conclusion that negligence had substantially contributed to the injury “would have rested upon surmise”).

Of considerable importance to our conclusion that Mrs. Garby’s proof of causation failed is that she has not challenged, either here or in the trial court, the determination by the Hospital and Dr. Akman that they had no basis for detaining Mr. Garby involuntarily for observation under the District of Columbia Hospitalization of the Mentally Ill Act, D.C.Code §§ 21-521 et seq. (2001) (the Ervin Act). Section 21-521 states that “a physician or qualified psychologist of the person in question, who has reason to believe that a person is mentally ill and, because of the illness, is likely to injure himself or others if he is not immediately detained may, without a warrant, take the person into custody, transport him to a public or private hospital, ... and make application for his admission thereto for purposes of emergency observation and diagnosis” (emphasis added). Section 21-522(a)(2) in turn permits the administrator of a hospital to admit and detain, for purposes of emergency observation and diagnosis, a person certified by a psychiatrist or qualified psychologist to have “symptoms of a mental illness and [who], because of the mental illness, is likely to injure himself or others unless the person is immediately detained.”⁴ Mrs. Garby presented no expert testimony disputing the reasonableness of the defendants’ judgment that Mr. Garby’s mental illness, as revealed to them, did not create a likelihood that he would injure himself unless immediately hospitalized under these statutes. In this court, as Mrs. Gar-by’s principal brief was somewhat ambiguous on the point (“Appellant ... has never contended that involuntary commitment was the only option for properly treating Michael Garby” (emphasis added)), the court pressed her attorney on it at oral argument, and he replied that “[w]e do not contend that [Mr. Garby] met the standard for involuntary commitment.”⁵ This was in keeping with plaintiffs position at trial. Although her complaint alleged that the defendants had been “negligent in failing to involuntarily hospitalize ... [Mr.] Garby,” by the time of her pretrial statement the claim had changed to one that the defendants had negligently “fail[ed] to adequately urge and insist that [Mr.] Garby accept treatment at the hospital for his illness.” At trial the judge inquired twice about the matter. The first time Mrs. Garby’s counsel hedged,⁶ but when the judge pursued the issue by asking, rhetorically, “I don’t expect that you would argue or imply in an argument that the decedent could have been involuntarily committed,” counsel responded, “I can’t argue facts that aren’t in evidence, and I can’t ask the jury to speculate.” In his testimony regarding involuntary hospitalization, Dr. Cavanaugh, Mrs. Garby’s expert, could say only that reasonable care required the emergency room doctors, as one option, to “consider involuntarily committing [Mr. Garby].” Yet it was undisputed that the doctors did consider that option but concluded that they lacked reason to believe he would injure himself unless detained, and Dr. Cavanaugh expressed no opinion that that judgment was negligent or mistaken.

To summarize, then, Mrs. Garby does not claim, and presented no evidence, that the defendants negligently failed to hospitalize Mr. Garby against his. will or that any failure on their part to accurately assess and diagnose his condition deprived them of information that would have supported such commitment. Instead, her argument rests on three assertions related to the pivotal issue of causation:

(1) Had the physicians kept Mr. Garby in the emergency room longer for observation, they might have been able to persuade him to agree to voluntary hospitalization overnight or longer.

(2) Had they administered or prescribed anti-depressant or tranquilizing medications rather than send Mr. Garby home with a prescription merely for sleeping pills (Ambien), that might have quelled his suicidal impulses enough to prevent his death six hours later; and

(3) Had Mrs. Garby been informed of her husband’s “true condition” rather than have it withheld from her based on the doctors’ erroneous reliance on physician-patient confidentiality, she “would have done many things” at home “to further reduce the likelihood of the tragic events whether it was to keep him in her sight at all times, bring others in, such as his sister to help her out, or seek better medical treatment.”

We consider these arguments in order.

A. Voluntary Commitment. Mrs. Garby argues that the defendants did not try hard enough to persuade Mr. Garby to check himself into the psychiatric unit on the night in question, relying on Dr. Cavanaugh’s testimony that if Mr. Garby “couldn’t be involuntarily committed for legal reasons,” a reasonable physician “would try quite hard, very hard to get him to come in voluntarily.” Only conjecture, however, supports a conclusion that additional efforts to persuade Mr. Garby to agree to voluntary hospitalization would have succeeded. By the time Mr. Garby was sent home, he had been in the emergency unit for nearly four hours, and twice during that time he had been told of and refused the option of voluntary commitment to the Hospital. Holding him there longer against his will, or attempting to persuade him more forcefully to remain there overnight, would have amounted to asserting the very same authority to compel his admission to the Hospital that Mrs. Garby admits the defendants lacked. Nor would enlisting Mrs. Garby’s help to convince him to remain there have offered more than speculative assistance. The undisputed testimony was that Mr. Garby viewed her as one of the persons plotting against him. He did not want her present during his communications with the doctors, and when she initially opposed his signing a document agreeing to be released to go home, he insisted that he wanted to be released, and she acceded to his wishes. The inference Mrs. Garby argues that had she been more fully informed of his recent thoughts of suicide she would have persuaded him to stay in the hospital rests on surmise or “at best evenly balanced [probabilities].” Gordon, 478 A.2d at 296 n. 2. Indeed, informing Mrs. Garby of her husband’s “true condition” (Br. for App. at 34) would have meant telling her that the doctors did not believe he was presently dangerous enough to himself to need hospitalization, and that information doubtless would have influenced how forcefully, if at all, she sought to have him remain there voluntarily-⁷

B. Better Medication. Dr. Cavanaugh faulted the doctors for “sending Mr. Garby] home with sleeping pills,” which made “no clinical sense.” Rather, proper care would have been to “[s]end [Mr. Garby] home with antidepressant [or anti-anxiety] medications,” which “might make some sense” because “[y]ou always want to. treat the anxiety,” something “[y]ou don’t treat ... with sleeping pills.” Dr. Cavanaugh’s testimony, however, failed to support an inference beyond conjecture that treating Mr. Garby with anti-anxiety or anti-depressant drugs would have prevented his suicide within six hours of his release. Other expert testimony, uncontradicted by Dr. Cavanaugh, was that a substantially longer period of time is required for anti-depressant drugs to take effect. While no similar testimony was given about tranquilizers, Dr. Cavanaugh did not explain how they, any more than anti-depressants, could, be expected to work quickly and effectively enough to prevent Mr. Garby’s suicide within so short a time.⁸ Further, prescribing either tranquilizers or anti-depressants depended on Mr. Garby’s cooperation, and the evidence showed that when he and Mrs. Gar-by passed an all-night CVS pharmacy as they walked home from the Hospital, they did not stop to fill the Ambien prescription he had been given. In these circumstances, Dr. Cavanaugh’s opinion that it “might make some sense” to prescribe anti-depressants or tranquilizers did not permit a conclusion by a preponderance of the evidence that doing so would have prevented Mr. Garby’s suicide.

C. Informing Mrs. Garby. Mrs. Garby’s primary argument is that if the physicians had told her of her husband’s suicidal ideation, she would have taken measures to insure that he was not in a position to harm himself that night. She relies on Dr. Cavanaugh’s testimony that the exercise of proper care by physicians required that Mrs. Garby be made “fully cognizant of the risk that was being assumed, the potential for danger” in taking Mr. Garby home — “that she know exactly what had been going on with this man in the few days or so before he gets into the emergency room” — and that her ignorance in particular of his “suicidal ideation with [a] plan to jump off a bridge” denied her the ability to take precautions against him injuring himself.

This argument highlights the basic tension, not to say contradiction, in Mrs. Gar-by’s position. A common theme of her briefs (opening and reply) is that the defendants erroneously believed that physician-patient confidentiality barred them from informing her of her husband’s suicidal impulses. Thus, she states: “There is no doubt in this case that Pirjo Garby was not aware of her husband’s suicidal thoughts or his plan to jump off of a bridge.” And, citing her own testimony, she adds that “if she had been made aware of her husband’s suicidal ideations she would not have taken custody of him” (Br. for App. at 24; Reply Br. for App. at 2; emphasis added). Dr. Cavanaugh too acknowledged that, had Mrs. Garby known the seriousness of her husband’s condition, she realistically would not have believed herself able to protect him by any precautions at home:

Q. Now assuming!, Doctor, that] Mr. Garby had gone home and Mrs. Garby had been told that you believed that he was imminently in danger of committing suicide!,] ... what would you have expected her to do?

A. I honestly would have expected her not to take him home.

Yet, as we have seen, Mrs. Garby presented no evidence and does not argue that the doctors were negligent in concluding that Mr. Garby was not “imminently in danger of committing suicide” such that he could be hospitalized for observation against his will. She similarly does not argue that if they had informed her of the gravity of his condition and learned that she was unwilling to take him home, that fact would have given them adequate reason, otherwise lacking, to involuntarily commit him.⁹

What Mrs. Garby’s position comes down to, rather, is that while her husband was not dangerous enough to be hospitalized against his will, he was “very, very close” to that (to quote her attorney’s language at argument in this court), and thus it was foreseeable to the defendants that if she was not informed of his suicidal ideation and able to take measures to guard against it at home, he would attempt to end his life. The problems with this argument begin, however, with the fact that Dr. Ca-vanaugh himself was skeptical about the efficacy of any measures Mrs. Garby could reasonably have taken to prevent the suicide, as this exchange reveals:

A. ... I would have expected her to be as vigilant as she possibly could have with some particular attention to [ — ] ... which would be very difficult I admit [ — ] how to block access to the porch in their condominium....

Q. You would not have expected Mrs. Garby to stay up all Saturday evening and Sunday morning to watch her husband, would you?

A. I would have liked that but I understand that would be impossible.

Q. And you would have expected Mrs. Garby, for example, to be able to go into the bathroom on her own and not continuously watch her husband?

A. Well ... I would tell her that somebody’s got to be with him. Now how that could be arranged I honestly do not know and I certainly agree with you. She could take a shower, sure.

Q. ... Michael Garby was a pretty big guy, so if ... he wanted to jump off the balcony ... Mrs. Garby would [not] have been much physical restraint from him, would she?

A. No, it was a problem.... [T]he sending of him home was a problem.

Neither Mrs. Garby nor anyone else testified how she would have been able to secure help from relatives (who apparently lived in Connecticut) or friends, on such short notice, to monitor Mr. Garby's actions between 3:00 a.m. and his suicide later that morning.

Moreover, from the standpoint of foreseeability on the defendants’ part — an essential component of proximate cause analysis, see, e.g., Psychiatric Inst. of Wash. v. Allen, 509 A.2d 619, 624 (D.C. 1986)—Mrs. Garby’s assertion that her husband was not dangerous enough to be committed but “almost so” does not make sense. If the doctors reasonably did not believe that Mr. Garby was an immediate danger to himself, how could they have foreseen that he would take his life within hours of his release unless protected from himself by Mrs: Garby? Either he was dangerous enough to himself to be detained for observation, or he was not; if he was, it would have been irresponsible— negligent or even grossly negligent — of the defendants to release him from the Hospital with or without knowledge of his suicidal intention by Mrs. Garby, untrained in monitoring or preventing actions by someone mentally ill. If he was not, it could not fairly be held foreseeable to them — by a preponderance of the evidence — that releasing him would risk his killing himself that morning save only for knowledge by Mrs. Garby of his “true condition.”

Our dissenting colleague points out correctly that Dr. Cavanaugh’s credentials as an expert were not challenged and that he was firm in his opinion that failure to inform Mrs. Garby of her husband’s suicidal ideation was “proximately, causally related to [Mr. Garby’s] ... subsequent death by suicide.” But Dr. Cavanaugh’s conclusion undermined itself in the same way that Mrs. Garby’s position does. He testified, we have seen, that he would not have expected a fully-informed Mrs. Garby to agree to “take [her husband] home,” yet he expressed no opinion that the defendants mistakenly believed they could not hospitalize Mr. Garby against his will, the only practical alternative to Mrs. Garby taking “custody” of him. Dr. Cavanaugh also opined that Mr. Garby’s mental illness “was quite treatable ... [a]nd if treated appropriately over a reasonable period of time almost certainly would have eliminated the future possibility of a completed suicide[,] with the continuation of appropriate treatment.” The question for a jury, however, would not have been whether “continued” treatment of Mr. Garby “over a reasonable period of time” would have saved him from himself, but whether better precautions by the defendants on releasing him from the emergency room— specifically telling Mrs. Garby of his suicidal ideations — would reasonably have prevented his suicide within hours of his release. The evidence supporting an affirmative answer to that question did not rise above surmise or conjecture.

The dissent argues that Dr. Cava-naugh’s inability to question the defendants’ assessment that Mr. Garby was not immediately dangerous to himself is a “red herring,” because the issue a jury could fairly decide was whether “a prudent plan for post-discharge treatment” would have sufficed to protect him — instead of a “negligently devised and executed” plan. Post at 534.¹⁰ But the only negligence the dissent points to in this regard is the failure to tell Mrs. Garby “the critical facts” of her husband’s condition, and, as we have seen, a key such fact would have been the doctors’ judgment — reached after hours-long observation, and unrebutted by Dr. Cavanaugh — that Mr. Garby was not an immediate danger to himself and so did not require hospitalization. The dissent nevertheless assumes throughout the fact of Mr. Garby’s present dangerousness and goes on to assert, for example, that had Mrs. Garby known “what the physicians knew” she “doubtless would have ... attempted to persuade him to remain at the hospital voluntarily and ... he may have agreed to do just that.” Id. at 528, 529-530.¹¹ What the dissent concedes here is “only a possibility,” id. at 530, is pure conjecture given the undisputed evidence, mentioned earlier, that Mr. Garby excluded his wife from his confidences with the doctors because he saw her as part of the conspiracy against him. The dissent’s added suggestion that “[i]f [Mr. Garby] had not agreed to remain, he may ... have reacted in a manner that would have changed the defendants’ appraisal of the extent of his dangerousness to himself,” id. at 530, merely further compounds the speculation. And the dissent’s ultimate conclusion that “[t]he enhanced sense of urgency that would have existed if Mrs. Garby had known of her husband’s suicidal planning” — “plans” the doctors, without contradiction by her expert, believed were not active or seriously-entertained enough to warrant emergency hospitalization— “would surely have generated a dramatically different scenario with dramatically different consequences,” id,., substitutes what the dissent and all of us wish had-happened for evidence.¹²

In the end, the dissent is simply unable to accept as reasonable the defendants’ judgment that Mr. Garby was not presently dangerous to himself and so did not require hospitalization. Mrs. Garby- herself, it says, “would have been unpersuaded by the notion that her husband was not a danger to himself.” Post at 532. But Mrs. Garby has never argued, because the evidence would not support the argument, that the doctors would have had grounds otherwise lacking to commit her husband involuntarily had she only been able to express her disagreement with their diagnosis or unwillingness to accompany him home. The dissent is thus left with the possibilities already discussed — that a better-informed Mrs. Garby might have talked her husband into remaining in the hospital voluntarily or, in any case, would not have “react[ed] in the same way as she did without the information.” Post at 42. As we have explained, these suppositions fail as a matter of law to establish a direct and substantial causal relationship between any omissions by the defendants and Mr. Garby’s death. See Talley, 689 A.2d at 552.

Affirmed.

1 . Mrs. Garby, a native of Finland, had been married to her husband for approximately three years.

2 . According to Mrs. Garby, her husband was afraid that he might be in serious legal trouble because some blueprints which had been stolen, from another company were used by his own company, and because he could be a suspect in the theft or unlawful use of the blueprints.

3 . SI stands for "Suicidal Ideation.”

4 . Such detention need only be supported by "probable cause,” Williams v. Meredith, 407 A.2d 569, 574 (D.C. 1979), but is limited in duration to forty-eight hours unless extended by court order. See D.C.Code § 21-523.

5 . "[A judge of this court]: ... [Y]ou are not arguing that if the doctors in the emergency room had been more probing, had taken more time, [and] had been less prepared to take at face value Mr. Garby’s assertions that he was okay now[, . \. that] would have provided a basis ... for seeking involuntary commitment. ...

[Counsel for appellant]: That is essentially right .... ”

6 . "[The Court]: ... [D]o you suggest from your evidence that ... [Mr. Garby] was subject to involuntary commitment?

[Counsel]: Your Honor, that's going to be a qualified no.”

7 . Likewise, if the doctors had informed Mrs. Garby that they did not believe he was presently dangerous to himself, it is speculative at best whether such disclosure would have prompted different actions by Mrs. Garby upon taking her husband home.

8 . Concerning tranquilizers, Dr. Soto of the Hospital testified that there were generally two classes, "antipsychotics and ... what they call benzodiazepines,” that both "have significant side effects in their use,” and that Mr. Garby had not been prescribed tranquilizers because on his release he would lack "close monitoring by someone who knows of the side effects.”

9 . The questions of whether Mr. Garby was mentally ill and dangerous enough to be detained against his will and whether the doctors were ethically at liberty to reveal his confidences to others, including to Mrs. Gar-by, are conceptually similar. See, e.g., Principles of Medical Ethics of the American Medical Association, No. IV, Anno. ("Psychiatrists at times may find it necessary, in order to protect the patient or community from imminent danger, to reveal confidential information disclosed by the patient.”) (emphasis added); MacDonald v. Clinger, 84 A.D.2d 482, 446 N.Y.S.2d 801, 805 (N.Y.App.Div.1982) ("Disclosure of confidential information by a psychiatrist to a spouse will be justified whenever there is a danger to the patient, the spouse or another person”). Given our resolution of this appeal, we do not consider whether, as the defendants argued at trial, disclosure of Mr. Garby's confidences to his wife when they did not believe he was an immediate danger to himself would have risked breaching their ethical duties.

10 . The dissent mistakenly treats Mrs. Garby's concentration on the issue of "post-discharge planning” as a mere tactical choice of her counsel that implies nothing about Mr. Garby's dangerousness. In fact Mrs. Garby’s position was necessitated by Dr. Cavanaugh's inability to fault the defendants’ judgment that Mr. Garby could safely be released from the Hospital because he was not likely to injure himself.

11 . Merely by posing the question in their briefs, "would Mr. Garby have changed his mind,” the defendants cannot remotely be said to have "conceded” the reasonable possibility that he would have, contrary to the dissent's assertion. Post at 528, 529.

12 . Assuming it were to make a difference (which the dissent does not quite say), our colleague opines that “the majority’s approach to the issue of causation was introduced into the controversy by [the majority].” Post at 533. That is incorrect. A repeated theme of the defendants' case, at trial and in this court, has been the absence of evidence countering the doctors’ conclusion that Mr. Garby was not an immediate danger to himself, and on that basis they argue’on brief — as part of the eleven pages they devote to proximate causation — that no causal connection existed between whatever "greater knowledge” Mrs. Garby should have had about her husband’s condition and his suicide. See, e.g., Br. for Appellees at 23. Unsurprisingly, causation, and specifically foreseeability, then became a focal point of oral argument. In any case, appellant can scarcely claim “the procedural unfairness" the dissent suggests concerning any aspect of our causation analysis, post at 533, when her opening brief ignored entirely the trial court’s determination of no proximate causation.