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Draughon v. United States

United States District Court, D. Kansas

August 15, 2017




         Plaintiff Donald Draughon brings this Federal Tort Claims Act (“FTCA”) wrongful death action against the United States of America, alleging the Veterans Health Administration was negligent in its treatment of his son William Draughon's (“William”) posttraumatic stress disorder (“PTSD”) and other mental health issues, which ultimately led to his suicide. This matter is before the Court on the Government's Motion for Summary Judgment (Doc. 130), the Government's Motion to Exclude Testimony Pursuant to Daubert (Doc. 132), and Plaintiff's Motion for Leave to File Sur-reply (Doc. 143). These motions are fully briefed and the Court is prepared to rule. As described more fully below, the Government's motions to exclude and for summary judgment are denied. Plaintiff's motion for leave to file a surreply is granted.

         I. Motion to Exclude Plaintiff's Expert Opinions on Causation

         A. Legal Standard

         The Court has broad discretion in deciding whether to admit expert testimony.[1]Generally, A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.[2]

         The proponent of expert testimony must show “a grounding in the methods and procedures of science which must be based on actual knowledge and not subjective belief or unaccepted speculation.”[3]

         In order to determine whether an expert opinion is admissible, the Court performs a two-step analysis. “[A] district court must [first] determine if the expert's proffered testimony . . . has ‘a reliable basis in the knowledge and experience of his discipline.'”[4] To determine reliability, the Court must assess “whether the reasoning or methodology underlying the testimony is scientifically valid.”[5] Second, the district court must further inquire into whether the proposed testimony is sufficiently “relevant to the task at hand.”[6] An expert opinion “must be based on facts which enable [him] to express a reasonably accurate conclusion as opposed to conjecture or speculation . . . absolute certainty is not required.”[7] And it is not necessary to prove that the expert is “indisputably correct, ” but only that the “method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which satisfy Rule 702's reliability requirements.”[8]

         Daubert sets forth a non-exhaustive list of four factors that the trial court may consider when conducting its inquiry under Rule 702: (1) whether the theory used can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance in the scientific community.[9] But “the gatekeeping inquiry must be tied to the facts of a particular case.”[10]

         It is within the discretion of the trial court to determine how to perform its gatekeeping function under Daubert.[11] The most common method for fulfilling this function is a Daubert hearing, although it is not specifically mandated.[12] In this case, the parties have not requested a hearing. The Daubert issues have been fully and thoroughly briefed by the parties. The Court has carefully reviewed the extensive exhibits filed with the motions, including the written reports submitted by the experts, and finds this review is sufficient to render a decision without conducting an evidentiary hearing.

         B. Discussion

         The Government moves to exclude the causation opinions of three experts offered by Plaintiff in opposition to summary judgment: Lawrence Amsel, M.D.; Michael H. Allen, M.D.; and Steven E. Bruce, Ph.D. The Government does not challenge the qualifications of these experts, nor the relevance of their opinions. The Government objects that their opinions are conclusory and thus fail to meet the reliability standards under Rule 702 and Daubert. The Government maintains that because there were no facts or data presented to these experts about the period between January 2010, when William was last discharged from the VA, and March 2010, when William's suicide occurred, their opinions on causation are “conclusory ipse dixit.”

         Under Missouri law, to demonstrate causation in a wrongful death case, “a plaintiff must show that the negligence of the defendant ‘directly caused' or ‘directly contributed to cause' the patient's death.”[13] In the context of suicide, Plaintiff must be able to offer evidence of proximate causation-that “suicide was ‘the natural and probable consequence' of the injury he suffered at the hands of the defendant.”[14] Such evidence will require expert testimony if there is no other direct evidence of causation presented.[15] If Plaintiff produces evidence “that the suicide resulted from the injury, the claim then can be submitted to the jury to decide as a question of fact, whether the suicide is a direct result of the defendant's negligence.”[16] As described below, the Court finds that each of Plaintiff's three expert opinions on causation are admissible under Rule 702 and Daubert.

         1. Dr. Amsel

         Dr. Amsel is a medical doctor licensed to practice in New York, and is board certified in psychiatry. He teaches clinical psychiatry at Columbia University, is a research psychiatrist at New York State Psychiatric Institute, and is an attending psychiatrist at New York Presbyterian Hospital. He is familiar with the standards of care at VA Hospitals, particularly those for treatment of PTSD in veterans, and for the prevention of suicide. The Court finds Dr. Amsel is qualified to render an opinion on the applicable standard of care, and on causation in this matter.

         Dr. Amsel reviewed William's VA medical records from February 25, 2005 through January 7, 2010-the last time he attended an appointment there. Dr. Amsel spends seven pages of his report reciting these medical records, and explaining the areas in which he believes the VA failed to meet the applicable standard of care in treating William. He then itemizes ten ways in which he believes the VA deviated from the standard of care in treating William. Only after this lengthy recitation does Dr. Amsel opine on causation:

Based upon my review of the foregoing medical records, it is my opinion (expressed with a reasonable degree of medical certainty) that the VA deviated from and fell below the acceptable standard of care in its treatment of William Paul Draughon. It is my opinion that more likely than not, within a reasonable degree of medical certainty, William Paul Draughon's deteriorated condition and suicide were the direct result of the VA's failure as aforesaid.[17]

         The parties dispute whether Dr. Amsel's opinion is “based on sufficient facts or data and is the product of reliable principles and methods, and if the principles and methods have been applied reliably to the facts of the case.”[18] The Government maintains that Dr. Amsel fails to explain the basis for his opinion that William's condition deteriorated after he was treated by the VA in January 2010, and that he fails to take into account any of the fact-witness depositions describing events on March 17 and 18. In order to meet the necessary causation standard under Missouri law, Plaintiff need only show that William's suicide was a probable and natural consequence of the VA's negligence. After going through five years' worth of VA medical records, Dr. Amsel explained the myriad ways in which he believes, within a reasonable degree of medical certainty, the VA fell below the standard of care in its treatment of William's PTSD. Included in these deviations are (1) the VA's decision to lower William's suicide risk level in December 2009 with no explanation, and (2) its failure to monitor William after he completed an addiction recovery program through the VA, in violation of VA policy. The Court finds that Dr. Amsel is qualified to render an opinion that the VA's failure to meet the standard of care required to treat William's PTSD proximately caused his suicide, based on his review of the medical records. While it is true that Dr. Amsel did not review the deposition testimony from fact witnesses about the events immediately preceding William's March 18, 2010 suicide, this is a gap that goes to the weight and not the admissibility of his testimony.

         2. Dr. Allen

         Dr. Allen is a medical doctor who is board certified in psychiatry, and was previously board certified in addictions. He is a Professor of Psychiatry and Emergency Medicine at the University of Colorado School of Medicine, an attending physician at the Colorado Depression Center, a consultant at the University of Colorado Hospital, and Medical Director of Rocky Mountain Crisis Partners. He has worked extensively with suicidal patients, performing research and developing guidelines for suicide screening. He is currently involved in a study of suicide screening in military hospitals through Denver's VA Mental Illness Research Educational and Clinical Center. The Court has reviewed Dr. Allen's credentials and finds that he is qualified to render an opinion in this case on the applicable standard of care, and on the cause of William's suicide.

         Similar to its objection to Dr. Amsel's opinion, the Government argues that Dr. Allen's opinion cannot be evaluated for reliability because he fails to explain the premise for his conclusion that William's condition deteriorated before his suicide, and because he fails to discuss events that occurred on March 17 and 18, 2010, immediately preceding the suicide. The Government also objects to Dr. Allen's rebuttal report to its own expert, Christopher Ticknor, M.D., and to his supplemental report addressing one of the VA provider's deposition testimony.

         As to Dr. Allen's primary report, the Court finds that the Government's objections must be overruled and denied for the same reasons explained as to Dr. Amsel. Similar to Dr. Amsel's report, Dr. Allen explains in detail how William's medical records reveal breaches of the standard of care that should have applied to his treatment, with a particular focus on his treatment in late 2009 and early 2010. And like Dr. Amsel, Dr. Allen identified several ways in which the VA failed to properly address William's PTSD, and assess and treat his suicide risk. Dr. Allen echoed Dr. Amsel's assessment that the VA's decision to reduce William's suicide risk assessment in December 2009 was not supported by the medical evidence, causing a reduction in services and treatment during the critical transition time after completing residential substance abuse treatment. Dr. Allen also opines that the VA was separately obligated to perform outreach to William when he missed appointments, which was not sufficiently performed by VA professionals in this case. Dr. Allen opines that these failures caused his condition to deteriorate. Dr. Allen reviewed Corey Draughon's deposition transcript, William's brother who was present on the date of his suicide, and the police reports from the night of the suicide. To the extent the Government contends that Dr. Allen's opinion is not credible because it does not sufficiently take into account evidence about William's condition in March 2010, that is an issue of weight over admissibility, which the trier of fact is entitled to determine.

         Dr. Allen's rebuttal report addresses specific opinions rendered by the Government's expert Dr. Ticknor. The Government argues that Dr. Allen's rebuttal opinion is unreliable on two grounds: (1) Dr. Allen's contention that William exhibited PTSD symptoms at the time of his death is not based on any reference to facts in the record; and (2) Dr. Allen fails to support his conclusion that although a “precipitant” was involved in William's suicide, it alone would not have caused William's suicide.

         In paragraph 2 of Dr. Ticknor's report, he sets forth the basis for his opinion that the VA's treatment of William did not cause his death. One of the grounds for this opinion is that the records he reviewed are devoid of any mention that William exhibited symptoms of PTSD or depression on the day or night of his suicide. He opines that the last evidence of suicidal thoughts is from October 2009. Dr. Allen reached a different causation opinion in his primary report, which this Court has already determined to be admissible. In the rebuttal report, Dr. Allen challenges Dr. Ticknor's focus on the time period immediately preceding William's death. Dr. Allen contends that Dr. Ticknor

uses the absence of evidence from unqualified lay people to assert that Mr. Draughon was asymptomatic at the moment of his death. This speciously would require that only symptoms occurring at a given moment in time contribute. It would further require a level of expertise and opportunity to examine Mr. Draughon that lay people in his environs could not possess.[19]

         The Government objects to this opinion, arguing that Dr. Allen provides “no apparent discussion of causation, nor any explicit statements about the events of March 18, 2010.” The Government also objects that Dr. Allen fails to explain what symptoms he believed were occurring, and how those symptoms resulted from a breach of the standard of care. But, as already discussed, Dr. Allen extensively explained his opinion in his initial expert report. His rebuttal report consistently criticizes Dr. Ticknor for evaluating William's symptoms only immediately preceding his death. Dr. Allen's opinion, in contrast, is that William's medical records evidence a longstanding battle with PTSD and depression that were aggravated by alcohol dependence. He opines that William's suicide risk level was reduced in contravention of VA guidelines, leading to his discharge with inadequate preparation and follow-up. Dr. Allen opines that these failures led to William's alcohol relapse and aggravated his suicide risk. The Court finds that these opinions are sufficiently reliable to be admissible, and that the Government's objections go to the weight and not the admissibility of his opinion.

         In paragraph 3 of Dr. Ticknor's report, he opines that “[a]lcohol abuse and long-standing impulsivity were the causes of Will Draughon's death, and not a failure by doctors and staff at the VA Healthcare System to treat Mr. Draughon's depression and PTSD.”[20] Dr. Ticknor sets forth in this paragraph several reasons for his opinion, calling William's “conscious, deliberate relapse of alcohol abuse . . . coupled with an accusation from his girlfriend . . . that [he] was cheating on her” as “precipitating factors.”[21] Dr. Ticknor maintains William's alcohol dependence was independent from his PTSD and depression; he disagrees with Dr. Amsel and Dr. Allen's opinions that William's alcohol dependence was related to his PTSD and was used as a form of self-medication. He further contends that the level of alcohol in William's system at the time of his death evidences a conscious decision not to comply with the medical recommendation of abstaining from alcohol.

         The second portion of Dr. Allen's rebuttal opinion challenged by the Government rebuts this paragraph of Dr. Ticknor's opinion, and therefore must be viewed in that context. Dr. Allen contends that Dr. Ticknor's opinion that William's alcohol dependence is unrelated to his PTSD and depression is not supported by the evidence or by the VA's own standards for treatment. He explains:

His evidence for this again is simply statements by lay witnesses. He should produce a methodology for his assertion that “Mr. Draughon was alcoholic independently of allegedly self-medicating depression or PTSD”. The fact that Mr. Draughon was alcoholic is uncontroverted so repeated evidence on this point simply reinforces the perception of Dr. Ticknor's bias.
The fact that there was a precipitant is also uncontroverted and unsurprising. Precipitants can do [sic] interact with any and all disposing conditions but precipitants alone are insufficient to result in suicide or the suicide rate would clearly be much higher. Reciting Mr. Draughon's relationship history would actually seem to undercut Dr. Ticknor's argument that this disruption would be sufficient to cause a fatal attempt. But again, whatever Mr. Draughon's history, it was or should have been known to the VA and understood as another potential risk factor in a high risk individual.[22]

         The Court has reviewed Dr. Allen's primary report, Dr. Ticknor's report, and Dr. Allen's rebuttal report and finds that his rebuttal report on this point has sufficient indicia of reliability. It is clear from the context of his report's response to Dr. Ticknor's assertions that Dr. Allen's precipitant reference is to Dr. Ticknor's discussion in paragraph 3 of his report to “precipitating factors”: i.e. William's use of alcohol coupled with the argument with his girlfriend on the night of his suicide. Dr. Allen sufficiently explains throughout his primary report, as well as the rebuttal report, that in his experience, and according to VA guidelines, alcohol dependence in a case like William's is related to his PTSD and depression, and that the combination of these factors, which he contends were inappropriately treated, led to William's suicide.

         Dr. Allen submitted a supplemental report addressing deposition testimony of George Dent, Ph.D., who testified that he had telephonic contact with William after his discharge when William failed to contact him for a follow-up appointment. The Government argues that Dr. Allen's supplemental report is flawed because although “Dr. Allen explains what he felt was wrong with this call . . . he never even attempts to explain how or why it caused William's suicide.” But Dr. Allen's supplemental report, by its terms, was not intended to address how this call caused William's suicide. It was “intended to cover only the deposition of Dr. Dent.” Dr. Allen explained how the phone call Dr. Dent discussed in his deposition did not change Dr. Allen's opinion that the VA failed to meet the standard of care required for follow-up of suicidal patients who miss appointments. The Court declines to exclude Dr. Allen's supplemental opinion.

         In sum, the Court finds that Dr. Allen's opinions have a reliable basis in the knowledge and experience of the psychiatry profession, and specifically psychiatrists who specialize in suicide screening and prevention. The Government's objections to Dr. Allen's opinions are classic weight over admissibility challenges, and are thus denied. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”[23]

         C. Dr. Bruce

         Steven E. Bruce, Ph.D. is a licensed clinical psychologist who is Director at the Center for Trauma Recovery, Director of Clinical Training, and Associate Professor of Psychological Services at the University of Missouri-St. Louis. The Court finds that he is qualified to render an opinion on the issues of standard of care and causation in this case. The Government challenges Dr. Bruce's expert and rebuttal reports on the same ground discussed above with reference to Dr. Amsel and Dr. Allen. It contends that Dr. Bruce's opinion lacks reliability because it fails to connect the alleged breaches of the standard of care he identifies with William's suicide. The Government provides a one-paragraph quotation summarizing Dr. Bruce's causation opinion, and makes the conclusory and incorrect assertion that he fails to explain or discuss the basis for his causation opinion. But Dr. Bruce has provided an extensive report that explains the basis for his standard of care and causation opinions. He reviewed William's medical records, VA practice guidelines and other VA documents, as well as some deposition testimony. He reaches similar conclusions as Dr. Amsel and Dr. Allen-that the VA did not adhere to its own policies and standards in treating William's PTSD and alcohol dependence. Significantly, Dr. Bruce identifies an error in William's PTSD checklist assessment one week prior to his discharge from the December inpatient treatment. He opines that the decision to discharge William may have been, at least in part, due to this mistake. Dr. Bruce addresses the many risk factors that should have been apparent to VA personnel when treating William in late 2009, as well as violations of VA policies regarding contacting veterans after they miss follow-up appointments. After approximately seven pages of opinions analyzing this evidence, Dr. Bruce sets forth his “strong opinion” that William did not receive adequate treatment at the VA, and that if he had received proper treatment, it could have changed the course and outcome of his life. He contends that the VA's errors “were significant factors that contributed to his suicide on March 18, 2010. In my opinion, Mr. Draughon's failure to recover as well as his eventual suicide were a direct result of the VA not adhering to their own guidelines and standards of care.”[24]

         Similar to its objections to the other experts' reports, the Government maintains that Dr. Bruce's causation opinion is deficient because it does not address events that transpired on March 17 and 18, 2010. As already discussed, the Court finds that this objection goes to the weight and not the admissibility of the experts' opinions. It is thus overruled and denied. Dr. Bruce's opinion meets the reliability standards that the Court applies in its role as gatekeeper.

         II. Motion for Summary Judgment

         A. Standards

         Summary judgment is appropriate if the moving party demonstrates “that there is no genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.”[25]In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[26] “There is no genuine [dispute] of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.”[27] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[28] A dispute of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.”[29]

         The moving party initially must show the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law.[30] In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial need not negate the nonmovant's claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.[31]

         Once the movant has met the initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”[32] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[33] Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”[34] In setting forward these specific facts, the nonmovant must identify the facts “by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”[35]

         Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”[36]

         B. Factual Background

         1. Hearsay Objections to the Police Report

         Before reciting the uncontroverted facts in this matter, the Court must rule on one other evidentiary issue-Plaintiff's hearsay objection to Defendant's Exhibit O, [37] the police report prepared by Kansas City, Missouri police officers after William Draughon's suicide. Plaintiff objects that the exhibit is inadmissible hearsay within hearsay. The Government responds that the witnesses' statements in each report can be presented in an admissible form at trial.[38]

         Summary judgment evidence need not be “submitted ‘in a form that would be admissible at trial.'”[39] But “the content or substance of the evidence must be admissible.”[40] Under Fed.R.Civ.P. 56(c)(2), a party may object on this basis-that the material “cannot be presented in a form that would be admissible in evidence.” Indeed, as the advisory committee notes to the 2010 Federal Rule amendments explain: “The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.”[41] “The requirement is that the party submitting the evidence show that it will be possible to put the information, the substance or content of the evidence, into an admissible form.”[42] With respect to hearsay, the proponent of the evidence must make some showing that the substance of the evidence would be admissible at trial by either demonstrating that an exception applies, or that the declarant would testify to the document's contents.[43]

         Plaintiff objects to the Government's reliance on two witness statements in the report: Jennifer Moran and Corey Draughon (“Corey”). The statements are undoubtedly hearsay within hearsay. The officers' statements in the report are out-of-court written statements, offered to prove the truth of the matter asserted.[44] And Moran and Corey's statements are hearsay within hearsay-they too are offered for the truth of the matter asserted.

         As to the first level of hearsay, the Government does not indicate that the officers who completed the report would testify at trial. Instead, the Government urges that the report falls under the public records or business records exceptions to the hearsay rule. The Court disagrees. A statement may qualify for the public records exception where:

(A) it sets out: (i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(b) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.[45]

         The statements upon which the Government relies in the Police Report are not the officers' observations, nor their factual findings or opinions from a legally authorized investigation.[46] The statements are those made to them by the witnesses. The Government has not shown that these statements qualify under the public records exceptions.

         Nor has the Government demonstrated that the business records exception applies. That exception may apply to reports prepared in the normal course of law enforcement investigations.[47] But similar to the public records exception, this exception does not apply when the declarant is not acting in the regular course of business. The advisory committee notes use the example of a police report's statement that includes a statement by an informant to demonstrate an instance where “an essential link is broken” because “the supplier of the information does not act in the regular course.”[48] With such statements in a police report, “the officer qualifies as acting in the regular course but the informant does not.”[49] Similarly, here the police report's recitation of witness statements does not meet the business records exception to the hearsay rule.

         Because the Government has failed to show the substance of this evidence can be presented in an admissible form at trial, the Court must exclude this evidence on summary judgment.[50]

         2. Uncontroverted Facts

         The following facts are uncontroverted, stipulated, or viewed in the light most favorable to Plaintiff as the nonmoving party. William Draughon (“William”) enlisted with the Marines in February 2001, and was honorably discharged in February 2005. While in the Marines, William served a seven-month combat tour in Iraq that ended on or around October 2004. He was a squad leader for at least part of his tour in Iraq. While there, William was exposed to fire fights and improvised explosive devices (“IED”). He reported that members of his squad died during his tour in Iraq, and he expressed feelings of guilt and responsibility for their deaths. William kept their dog tags around the mirror of his truck. His brother Corey recalls William telling him about having to “go into the enemy's huts, homes and whatever they call them over there, and he had to kill them before they would kill him. And some of them would be women, children, and it was either his life or theirs.”[51] William received a citation for heroic service during his service in Iraq.

         Upon returning to the United States in October 2004, William reported symptoms consistent with PTSD, and was ultimately diagnosed as having PTSD at the time of his discharge from military service. At that time, and on February 10, 2005, William stated to the U.S. Marine Health Care Provider his intention to seek out help through the VA for disability and for his PTSD. In 2008-2009, William had three failed suicide attempts: (1) in 2008, by placing a hangman's noose over a beam in his basement; (2) in January 2009, when he tried to shoot himself in the head and missed; and (3) in August 2009, by overdosing on his medication.

         Between February 2005 and August 26, 2009, William attended mental-health appointments at the Veterans Affairs Kansas City Medical Center (“KCVA”) on five occasions: August 4, 2005; April 7, 2008; December 16, 2008; January 20, 2009; and March 31, 2009. He was hospitalized at the KCVA from August 28, 2009, until September 2, 2009, and from October 4, 2009, until October 7, 2009. William attended the Substance Abuse Residential Recovery Treatment Program (“SARRTP”) at the KCVA from October 7, 2009, until October 28, 2009. Then, from November 18, 2009, until January 6, 2010, William attended the Psychiatry and Addiction Recovery Treatment (“PART”) Program at the Leavenworth VA in Kansas.

         Relevant VA Policies and Procedures for the Treatment of PTSD and Substance Abuse Disorders

         The VA has a procedure in place for identifying patients at high risk for suicide. It contains “carefully defined criteria for high risk suicide” and references the warning signs and high-risk criteria described in the “Suicide Risk Assessment Guide Reference Manual.” The “Suicide Risk Assessment Guide Reference Manual” includes a list of nonexhaustive factors that may increase a person's risk for suicide. Some of the factors on this list are:

• Current ideation, intent, plan, access to means
• Previous suicide attempt
• Alcohol/substance abuse
• Current or previous history of psychiatric diagnosis
• Impulsivity and poor self-control
• Recent losses-physical, financial, personal
• Recent discharge from an inpatient psychiatric unit
• Co-morbid health problems

         Additionally, the VA issued a memo on April 24, 2008, providing guidance to the Suicide Prevention Coordinator (“SPC”) for identifying and treating patients at high risk for suicide. The memo requires SPCs to report certain patients as high risk. Among other requirements:

Patients, who are admitted for hospitalization as a result of a high-risk for suicide ideation, must be placed on the high-risk list, and kept on the list for a period of at least 3 months after discharge. They must be evaluated at least weekly during the first 30 days after discharge. Other patients identified as surviving a suicide attempt and those who are placed on the high-risk list for other reasons should also be evaluated at least weekly for at least the next month.[52]

         The policy outlined in the April 24, 2008 memo also requires that such patients have a care plan including monitoring for suicidality and periods of increased risks. This plan must include specific processes of follow-up for missed appointments. In addition, there must be a written safety plan with specific features outlined in the policy, including a list of “situations, stressors, thoughts, feelings, behaviors and symptoms that suggest periods of increased risk, as well as step-by-step descriptions of coping strategies and help-seeking behaviors that can be used at these times.”[53]

         The VA's Clinical Practice Guideline for the Management of Post-Traumatic Stress provides in part:

Effective PTSD treatment is extremely difficult in the face of active substance use problems unless the substance use[] disorders are also treated. Most often, attempts to address substance problems should proceed concurrently with the direct management of PTSD. However, in cases when the substance use is severe, substance use may require initial treatment and stabilization before progressing to PTSD care (e.g., patient requires detoxification from opiates) . . . .[54]

         On July 18, 2008, the VA issued a directive regarding the use of patient record flags (“PRF”) to identify patients at high risk for suicide. “The primary purpose of the High Risk for Suicide PRF is to communicate to VA staff that a veteran is at high risk for suicide and the presence of a flag should be considered when making treatment decisions.”[55] This flag pops up in the patient's electronic medical record before a health care provider can access the record. The VA directive makes clear that

a PRF is limited to only those patients at high risk, and only for the duration of the increased risk for suicide. The PRF is removed as soon as it is clinically indicated to do so. This is especially important to minimize the risk of undue stigmatization for the patient, and to maintain the value of the PRF system as an alert to immediate clinical safety concerns.[56]

         The directive further explains that whether a veteran is determined to be at high risk for suicide “is always a clinical judgment made after an evaluation of risk factors (e.g., history of past suicide attempts, recent discharge from an inpatient mental health unit), protective factors and the presence or absence of warning signs as listed on the VA Suicide Risk Assessment Pocket Card.”[57]

         William's VA Treatment History

         William's PTSD screens were positive at his appointments in 2006 and 2008. In 2007, William reported a history of exposure to IED, grenades and land mines, after which he was dazed and confused. He was referred for consultation for Traumatic Brain Injury (“TBI”), but a 2009 notation in his medical record indicates that he “did not come in for exam at that time.”[58]

         On March 31, 2009, William told a VA psychiatrist that he struggled with the anniversary of losing some of his buddies in Iraq, and that he always drinks heavily on that date in early April. The psychiatrist indicated in his notes that William suffered from PTSD.

         August 28, 2009-September 2, 2009 Hospitalization

         William was hospitalized at the KCVA for his first acute stabilization from August 28, 2009, until September 2, 2009. On August 27, 2009, William drank alcohol despite being on Antabuse, dressed himself in camouflage, blackened his face, and got a knife. After police were called, William ran from them and eventually woke up inside his dog house. He reported ...

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