Is “independent intervening cause” alive in New Mexico?

In Silva v. Lovelace Health System, Inc. (May 6, 2014), the New Mexico Court of Appeals (in a 2-1 decision) reversed a jury verdict in a wrongful death case for failure to instruct the jury on the doctrine of independent intervening cause. The question is whether this decision will survive review by the New Mexico Supreme Court. I think it will not.

To combat Susan Silva’s depression, a physician prescribed antidepressants, including Paxil, in 2004. Sadly, Ms. Silva committed suicide in 2006 (and was found with 22 times the therapeutic dose of Paxil in her system). Ms. Silva’s family sued the physician and her employer, Lovelace, for negligence in treating her depression.

At trial, the defendants asked the trial judge to instruct the jury on their theory that Ms. Silva’s suicide was an independent intervening cause. That instruction would have told the jury that an “independent intervening cause interrupts and turns aside a course of events and produces that which was not foreseeable as a result of an earlier act or omission.” This request was denied, and the jury returned a plaintiffs’ verdict.

Surprisingly, the Court of Appeals (in an opinion by Judge Fry) reversed the verdict, holding that the defendants were entitled to have the jury instructed on the doctrine of independent intervening cause.

This decision is surprising because, as the Court itself says, New Mexico’s appellate courts have “virtually eliminated” the doctrine in negligence cases. In cases like Torres v. El Paso Electric Company (NMSC 1999) and Chamberland v Roswell Osteopathic Clinic, Inc. (NMCA 2001), New Mexico’s courts have said that in cases involving negligent conduct, the only question is whether the defendant’s negligence caused the injury. The independent intervening cause adds nothing to that inquiry, and “overemphasizes” a defendant’s “attempt to shift fault to a plaintiff.” (I personally don’t agree with the Torres  and Chamberland cases, because I think the independent intervening cause instruction is a very reasonable way of describing the defense in such cases.  And as a defense lawyer, anything that stresses the plaintiff’s fault is fine by me … but I digress).

The Torres court said, however, that its analysis did not “extend to intentional tortious or criminal acts or forces of nature.” The Court of Appeals noted that there was evidence that Ms. Silva’s acts were intentional and unforeseeable, and said that the jury should have been allowed to resolve the conflict between this defense evidence, and the plaintiffs’ evidence that Ms. Silva’s suicide was a foreseeable result of the treatment. A new trial was ordered.

But given the rationale of Torres and Chamberland — that an independent intervening cause instruction shouldn’t be given where the real defense is that the defendant didn’t cause the injury — I have a hard time seeing why this case would warrant the instruction. Plaintiffs contended that the doctor’s alleged negligence is what caused Ms. Silva to be suicidal, and defendants surely must have argued to the jury that Ms. Silva herself decided to commit suicide even apart from the anti-depressants. As Judge Zamora said in her dissenting opinion, “The jury was able to consider whether the suicide was a result of the undisclosed risk and lack of follow up care by her doctor, or whether Decedent in a psychotic state or of her own free will took her own life.”

So while my heart is with the defense, my head says that this decision will likely be reversed. But if you disagree with my assessment, please leave a comment and tell me why I’m wrong!

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