Rice v. United States of America, The

Filing 61

ORDER denying 57 Motion to Dismiss Signed by Honorable David C Norton on 3/21/2022.(nhaj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
KAREN RICE, individually and as personal
representative of the estate of Brian E. Rice,

)
)
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Plaintiff,
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vs.
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UNITED STATES OF AMERICA,
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Defendant.
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_______________________________________)

No. 2:17-cv-1992-DCN
ORDER

The following matter is before the court on defendant United States of America’s
(the “government”) supplemental motion to dismiss, ECF No. 57. For the reasons set
forth below, the court denies the motion.
I. BACKGROUND
This case arises out of the death of Brian Rice (“Mr. Rice”), plaintiff Karen Rice’s
(“Mrs. Rice”) husband. Mr. Rice served in the military and received medical care from
the Ralph H. Johnson Department of Veterans Affairs Medical Center (the “VAMC”) in
Charleston, South Carolina. During early summer of 2014, Mr. Rice sought treatment
from the VAMC for depression. He had also been undergoing treatment for thyroid and
prostate cancer, which contributed to his depression. In July 2014, doctors at the VAMC
prescribed Celexa to treat Mr. Rice’s depression. On August 13, 2014, Mr. Rice was still
suffering from depression and returned to the VAMC, where his Celexa dosage was
increased. Then, on September 1, 2014, Mr. Rice admitted himself to the VAMC
because he was suicidal. He told his physicians that he was hallucinating, he could not

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sleep, and he wanted to shoot himself. A PHQ-9 screen was performed on Mr. Rice, and
he scored a “20,” which suggested severe depression.
On September 2, 2014, Mr. Rice had a psychiatric consult with Dr. Paul Everman,
Jr. and Dr. Eric Brueckner. During this consult, Mr. Rice told the physicians that the
Celexa was not helping with his depression, he worked in law enforcement and owned
guns, and he wanted to shoot himself with one of his guns. Later that day, Mr. Rice was
admitted for in-patient psychiatric hospitalization. He was diagnosed with “mood
disorder unspecified,” and the physicians believed that the Celexa may be the cause of
Mr. Rice’s suicidal thoughts. On September 3, 2014, Mr. Rice saw Drs. Everman and
Brueckner again. Mrs. Rice alleges that on this day, Mr. Rice’s treatment plan indicated
that Mr. Rice’s depression was “unstable,” and his suicide risk was “severe.” ECF No. 1,
Compl. ¶ 49. Mr. Rice told medical personnel that he wanted to go home. The doctors
deemed Mr. Rice “not commitable,” and Mr. Rice left the VAMC against medical advice.
Id. ¶ 51. He was advised to follow up with a counselor.
On September 18, 2014, Mr. Rice sent an email to a nurse at the VAMC
indicating that he was still depressed and was only sleeping 3 to 4 hours a night.
Subsequently, on the evening of September 23, 2014, Mr. Rice was at home when Mrs.
Rice and their daughter came home. Soon after they arrived, “for the first time in his life
and completely out of the blue,” Mr. Rice threatened Mrs. Rice with a gun. Id. ¶ 59.
Mrs. Rice ran outside and called the police. When the police arrived, Mrs. Rice
explained the situation, and police tried to convince Mr. Rice to come out of the house.
Mr. Rice came outside at one point with his gun and started to shoot at the police, but the
police did not fire back. Instead, they tried to convince Mr. Rice to surrender. At some

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point, Mr. Rice escaped the house and fled. When the police realized Mr. Rice had fled,
they began looking for him. One of the officers found Mr. Rice and began talking to him,
not realizing it was Mr. Rice. One he realized it was Mr. Rice, the police officer took
cover. Police tried again to convince Mr. Rice to surrender, but Mr. Rice started shooting
at the officer who found him. Despite the police’s efforts to end the situation, Mr. Rice
kept firing at the officers. Around midnight, a SWAT marksman shot and killed Mr.
Rice, which Mrs. Rice characterizes as “suicide by cop.” Id. ¶ 72.
Mrs. Rice brought this case pursuant to the Federal Tort Claims Act (“FTCA”) on
July 27, 2017, alleging medical negligence for wrongful death, medical negligence as a
survivorship action, and loss of consortium. See generally id. Mrs. Rice also filed an
affidavit by Dr. Stephen Price opining on the government’s negligence, as required by
South Carolina law in actions alleging professional negligence, S.C. Code. Ann. § 15-36100(B), and death as a result of medical malpractice, id. § 15-79-125(A). The
government filed a motion to dismiss on June 22, 2018. ECF No. 26. On March 25,
2019, this court granted defendant’s motion to dismiss on the basis that the complaint
failed to sufficiently plead proximate cause (the “Order of Dismissal”). ECF No. 43. In
so finding, the court relied on a “general rule” of South Carolina law providing that
“suicide constitutes an intervening force which breaks the line of causation from the
wrongful act to the death.” Id. at 7–8 (citing Watson v. Adams, 2015 WL 1486869, at *6
(D.S.C. Mar. 31, 2015) and Scott v. Greenville Pharmacy, 48 S.E.2d 324 (S.C. 1948)).
Mrs. Rice noticed a timely appeal on March 29, 2019. On July 13, 2021, the
United States Court of Appeals for the Fourth Circuit vacated this court’s Order of

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Dismissal. Rice v. United States, 2021 WL 2935344 (4th Cir. July 13, 2021). The
Fourth Circuit explained,
After the district court issued its opinion, the Supreme Court of South
Carolina, responding to a certified question from this court, clarified that
there is no “general rule that suicide is an intervening act which breaks the
chain of causation and categorically precludes recovery in wrongful death
actions,” explaining that South Carolina “courts . . . appl[y] traditional
principles of proximate cause to individual factual situations when
considering whether a personal representative has a valid claim for
wrongful death from suicide.”
Id. at *1 (citing Wickersham v. Ford Motor Co., 853 S.E.2d 329, 331 (S.C. 2020), reh’g
denied (Feb. 5, 2021)). Accordingly, the Fourth Circuit vacated this court’s order and
remanded to “consider the sufficiency of [Mrs.] Rice’s complaint in light of
Wickersham.” Id. On remand, the government moved for leave to file a supplemental
memorandum on October 21, 2021. ECF 55. The court granted that motion on
November 17, 2021, ECF No. 56, and the government filed its supplemental motion to
dismiss on the same day, ECF No. 57. On December 1, 2021, Rice responded in
opposition. ECF No. 58. As such, the supplemental motion to dismiss is now ripe for the
court’s review.
II. STANDARD
A Federal Rule of Civil Procedure 12(b)(6) motion for failure to state a claim
upon which relief can be granted “challenges the legal sufficiency of a complaint.”
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also
Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to
dismiss under Rule 12(b)(6) . . . does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”). To be legally sufficient, a pleading
must contain a “short and plain statement of the claim showing that the pleader is entitled
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to relief.” Fed. R. Civ. P. 8(a)(2). A Rule 12(b)(6) motion should not be granted unless it
appears certain that the plaintiff can prove no set of facts that would support his claim
and would entitle him to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993). When considering a Rule 12(b)(6) motion, the court should accept all wellpleaded allegations as true and should view the complaint in a light most favorable to the
plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir.1999); Mylan Labs., Inc., 7
F.3d at 1134. “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
III. DISCUSSION
The government argues that the court should dismiss Mrs. Rice’s complaint
because the acts of the physicians at the VAMC were not a proximate cause of Mr. Rice’s
death, notwithstanding Wickersham’s clarification that there is no general rule that
suicide breaks that chain of causation to categorically preclude recovery in wrongful
death actions. Upon consideration, the court finds dismissal inappropriate at this stage.
This court has construed Mrs. Rice’s claim as a medical malpractice claim. ECF
No. 46 at 3 (“Mrs. Rice pleaded her case as a ‘medical negligence’ case, but at the
hearing, the parties agreed that this case is a medical malpractice case.”). To state a
cause of action for medical malpractice in South Carolina, the plaintiff must plead the
following elements:

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(1) The presence of a doctor-patient relationship between the parties; (2)
Recognized and generally accepted standards, practices, and procedures
which are exercised by competent physicians in the same branch of
medicine under similar circumstances; (3) The medical or health
professional’s negligence, deviating from generally accepted standards,
practices, and procedures; (4) Such negligence being a proximate cause of
the plaintiff’s injury; and (5) An injury to the plaintiff.
Brouwer v. Sisters of Charity Providence Hosps., 763 S.E.2d 200, 203 (S.C. 2014)
(citations omitted). For suicide cases specifically, “health care professionals are subject
to liability for failure to prevent suicide only when departure from the standards of their
profession proximately causes their patient’s suicide [and South Carolina law] does not
impose strict liability on those with a duty to prevent suicide.” Hoeffner v. Citadel, 429
S.E.2d 190, 194 (S.C. 1993). The question on remand is whether, taking Mrs. Rice’s
factual allegations in the complaint as true, the government’s alleged deviation from
generally accepted standards, practices, and procedures proximately caused Mr. Rice’s
death.
Under South Carolina law, “[p]roximate cause requires proof of (1) causation in
fact and (2) legal cause.” Bramlette v. Charter-Med.-Columbia, 393 S.E.2d 914, 916
(S.C. 1990) (citation omitted). To show proximate cause, a plaintiff must show both
causation in fact and legal cause. Madison ex rel. Bryant v. Babcock Ctr., Inc., 638
S.E.2d 650, 662 (S.C. 2006) (citing Oliver v. S.C. Dep’t of Highways & Pub. Transp.,
422 S.E.2d 128, 130 (S.C. 1992)). A plaintiff proves causation in fact by establishing
that the injury would not have occurred “but for” the defendant’s negligence, and legal
cause by establishing foreseeability. Id. (citing Oliver, 422 S.E.2d at 130).
“Foreseeability is determined by looking at the natural and probable consequences of the

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complained of act, although it is not necessary to prove that a particular event or injury
was foreseeable.” Id. (citations omitted).
The defendant’s negligence does not have to be the sole proximate cause of the
plaintiff’s injury; instead, the plaintiff must prove the defendant’s negligence was at least
one of the proximate causes of the injury. Id. An intervening force may be a superseding
cause that relieves an actor from liability, but for there to be relief from liability, the
intervening cause must be one that could not have been reasonably foreseen or
anticipated. Rife v. Hitachi Const. Mach. Co., 609 S.E.2d 565, 569 (S.C. Ct. App. 2005).
In other words, the intervening negligence of a third party will not excuse the first
wrongdoer if such intervention ought to have been foreseen in the exercise of due
care. Bishop v. S.C. Dep’t of Mental Health, 502 S.E.2d 78, 83 (S.C. 1998). “In such
case, the original negligence still remains active, and a contributing cause of the
injury.” Id. Accordingly, if the intervening acts are set into motion by the original
wrongful act and are the foreseeable result of the original act, the “final result, as well as
every intermediate cause, is considered in law to be the proximate result of the first
wrongful cause.” Wallace v. Owens–Ill., Inc., 389 S.E.2d 155, 157 (S.C. Ct. App. 1989).
“In most cases, foreseeability ends up being addressed as a question of fact for the
jury.” Wickersham, 853 S.E.2d at 332 (citing Oliver, 422 S.E.2d at 131). “In the first
instance, however, legal cause is just what its name suggests—a question of law.” Id.
“When the evidence is susceptible to only one inference, legal cause becomes a matter of
law for the court.” Id. (cleaned up) (citing Matthews v. Porter, 124 S.E.2d 321, 323 (S.C.
1962); Gause v. Smithers, 742 S.E.2d 644, 649 (S.C. 2013) (discussing foreseeability,
and stating “in rare or exceptional cases . . . the issue of proximate cause [may] be

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decided as a matter of law”)). Accordingly, “[f]irst, the court must decide as a matter of
law whether the suicide was unforeseeable. If the court determines the suicide was not
unforeseeable as a matter of law, the jury must consider foreseeability.” Id. at 333.
The court does not find Mr. Rice’s death unforeseeable as a matter of law. The
government argues that the facts alleged are susceptible to only one reasonable inference:
that it was unforeseeable that the government’s actions would result in the tragic chain of
events that led to Mr. Rice’s death twenty days after he left the VAMC. Specifically, the
government argues that to prove proximate cause, Mrs. Rice would have to prove that (1)
Mr. Rice would in some way provoke Mrs. Rice or another person; (2) Mr. Rice would
take this action with the ultimate intent of getting into a deadly exchange with the police;
(3) Mrs. Rice (or some other person) would call the police; (4) Mr. Rice would at no
point surrender to the police; and (5) the police would in fact kill Mr. Rice. In so
arguing, the government overstates Mrs. Rice’s burden in proving proximate cause.
Under South Carolina law, the VAMC’s alleged malpractice can be a proximate cause of
Mr. Rice’s death if “either the intervening act or the injury itself was foreseeable.”
Bramlette, 393 S.E.2d at 917. The foreseeability test does not require a defendant to
anticipate the exact circumstances of the ultimate injury but rather makes the defendant
responsible for “anything which appears to have been a natural and probable consequence
of his negligence.” Id. at 916 (citing Greenville Mem’l Auditorium v. Martin, 391 S.E.2d
546 (S.C. 1990)). In other words, “[i]t is unessential that the precise manner in which
the injuries might have occurred, or where sustained, be foreseeable, or foreseen. It is
sufficient that there is a reasonable generalized gamut of greater than ordinary dangers
of injury and that the sustaining of the injury was within this range.” Hughes v.

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Children’s Clinic, P. A., 237 S.E.2d 753, 756–57 (S.C. 1977). As alleged, Mr. Rice’s
death falls comfortably within this range.
The complaint alleges that Mr. Rice sought treatment for depression from the
VAMC, where he was prescribed Celexa. He returned to the VAMC the next month
stating that he was still suffering from depression, and the VAMC physicians increased
his Celexa dosage in response. Approximately two weeks later, Mr. Rice admitted
himself to the VAMC because he was suicidal. When he was admitted for in-patient
psychiatric hospitalization, the government’s treatment plan indicated that Mr. Rice’s
depression was unstable and that his suicide risk was severe. Mr. Rice told his physicians
that he was hallucinating, that he could not sleep, and that he wanted to shoot himself.
He explained that Celexa was not helping with his depression, and the physicians noted
that his Celexa prescription may, in fact, be the cause of Mr. Rice’s suicidal thoughts.
Mr. Rice told the physicians that he owned guns and that he wanted to shoot himself with
one of his guns. Nevertheless, the doctors allegedly determined that Mr. Rice could not
be involuntarily committed and permitted Mr. Rice to leave the VAMC against medical
advice and without warning to family members of the risk presented by his access to
guns. Twenty days later, Mr. Rice threatened his wife with a gun, which led to the arrival
of the police, Mr. Rice’s flight, a shootout between Mr. Rice and the police, and
ultimately his death by a gunshot wound. Based on these allegations, Mrs. Rice has
plausibly pleaded that Mr. Rice’s erratic actions that led to his encounter with the
police—and ultimately to his death—were a natural and probable consequence of the
VAMC’s medical malpractice.

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Of course, the government may ultimately prove by expert testimony that the
VAMC did not deviate from generally accepted medical standards in its care of Mr. Rice.
However, that is not the question before the court. At this stage, the court must accept as
true Mrs. Rice’s allegations that the VAMC’s actions deviated from accepted medical
standards and need only determine whether Mr. Rice’s death was an unforeseeable result
of those actions as a matter of law. The court has no trouble answering that question in
the negative. The complaint sufficiently alleges that the VAMC was acutely aware of
Mr. Rice’s risk of suicide and that it was providing medical services to address Mr.
Rice’s depression and suicidal ideations. Accepting as true that Mr. Rice committed
suicide by cop,1 it is certainly plausible that the VAMC should have foreseen this
outcome if it did not exercise reasonable care. Moreover, even if the court did not
construe the alleged police encounter as suicide by cop, the complaint plausibly alleges
that the intervening acts of Mr. Rice threatening his wife with a gun and consequential
shootout with the police were a foreseeable outgrowth of the VAMC’s failure to provide
proper medical treatment and care for Mr. Rice’s depression and suicidal inclinations.
See Jones v. Beth Israel Hosp., 2018 WL 1779344, at *10 (S.D.N.Y. Apr. 12, 2018)
(“Plaintiff's submissions also plausibly plead that Defendant's deviation from the standard
of care was the proximate cause of his injury—his inability to control his emotions and
his ongoing suicidal ideations that led to his attack of the N.Y.P.D. officers.”). Under

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Suicide by cop has been recognized by courts as a form of suicide. See, e.g.,
Molchon v. Tyler, 546 S.E.2d 691, 693 (Va. 2001) (finding that a fatal gunshot by police
was fired under circumstances that “were the equivalent of suicide”); Freeman v.
Stephens, 614 F. App’x. 180, 182 n.2 (5th Cir. June 9, 2015) (quoting Black’s Law
Dictionary 1662 (10th ed. 2014)) (defining “suicide-by-cop” as “[a] form of suicide in
which the suicidal person intentionally engages in life-threatening behavior to induce a
police officer to shoot the person”).
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either construction, the complaint plausibly alleges that Mr. Rice’s death was set into
motion by the VAMC’s wrongful acts and was a foreseeable result of those acts.
This result best aligns with South Carolina caselaw regarding medical malpractice
as a proximate cause of suicide. For example, in Bramlette, the court declined to decide
proximate cause as a matter of law despite an unusual series of acts between a doctor’s
error and his patient’s suicide. 393 S.E.2d at 917. The patient in Bramlette was initially
placed on suicidal precautions status, meaning that the patient was not allowed off
hospital grounds and was observed every fifteen minutes by hospital staff. Id. at 915.
His physician thereafter ordered the patient’s status changed from suicidal precautions to
active observation. Id. The patient was permitted off the hospital grounds on a
recreational outing with a small group of fellow patients and an occupational therapist.
Id. On that outing, the patient told the driver to pull the hospital vehicle off the road to
let him out to vomit. Id. The patient then ran to a highway overpass twenty feet away,
climbed up on the ledge, and flung himself to his death. Id. A psychiatric expert testified
that the doctor deviated from the accepted standard of practice in failing to get a complete
history from the family; failing to order more intense supervision; failing to prohibit an
outing off hospital grounds; and failing to diagnose the patient as a high risk for
suicide. Id. at 916. Despite the intervening negligence of a bus driver and the patient’s
decision to exit the bus onto a highway and commit suicide, the court found that the issue
of proximate cause was properly submitted to the jury. Id. at 917.
Likewise, in Sloan v. Edgewood Sanatorium, Inc., 80 S.E.2d 348 (S.C. 1954), the
decedent was twice admitted to a mental health facility in one month to receive electroshock and then medication therapy. Id. at 348–49. The first hospitalization ended when

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the decedent left against medical advice. Id. During the second admission, doctors
admitted knowing the decedent had “very definite suicidal tendencies” requiring constant
supervision from hospital staff. Id. at 349. However, during a period when he was left
alone, the decedent hung himself in the bathroom adjacent to his hospital room. Id. A
medical malpractice suit on the decedent’s behalf was litigated through trial and resulted
in a verdict in plaintiff’s favor. The South Carolina Supreme Court affirmed the verdict,
rejecting the hospital’s argument that the suicide was unforeseeable as a matter of law.
Id. at 353.
The court is persuaded by Bramlette and Sloan that South Carolina courts are
hesitant to remove the issue of proximate cause from the factfinder in medical
malpractice cases where the provider is tasked with addressing suicidality. The
government suggests that the instant case is distinguishable from Bramlette and Sloan
because Mr. Rice had been out of the VAMC’s custody for twenty days before his death.
However, there is no requirement under South Carolina law that a patient be in a medical
provider’s custody for that patient’s suicide to be foreseeable. Moreover, the court does
not find that the twenty intervening days between Mr. Rice’s discharge from the VAMC
and his death break the causal chain as a matter of law—particularly in light of the
allegation that Mr. Rice emailed a nurse at the VAMC to complain of his continued
depression and issues with Celexa only five days before his death. The court’s decision
to the contrary in its vacated Order of Dismissal turned on “the general rule . . . that
suicide constitutes an intervening force which breaks the line of causation from the
wrongful act to the death.” ECF No. 43 at 7. The court found that the only potentially
relevant exception to the general rule was when “the decedent was in the custody and

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under the care of the defendant, and suicide was both foreseeable and the ‘natural and
probable consequence’ of the defendants’ negligence.” Id. at 8. The court found that the
exception did not apply when Mr. Rice had not been in the custody of the VAMC for
twenty days, notwithstanding the allegation that the physician-patient relationship
continued after Mr. Rice was discharged from the VAMC. However, after the South
Carolina Supreme Court’s clarification in Wickersham that there is no general rule that
suicide constitutes a superseding force that cuts off liability, the court finds that the
temporal proximity between the VAMC’s custody and his death is not dispositive of the
proximate cause issue as a matter of law.2
Overall, the court does not find that this is one of the rare and exceptional cases
where proximate cause may be decided as a matter of law. Mrs. Rice’s allegations
suggest a causal link between the VAMC’s alleged deviation from the standard of care

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The government also relies on McKnight v. S.C. Dep’t of Corr., 684 S.E.2d 566,
570 (S.C. Ct. App. 2009) in arguing that the lapse of time between Mr. Rice’s discharge
and his death breaks the chain of causation. In McKnight, the personal representative of
a deceased former inmate brought a survival and wrongful death action against the South
Carolina Department of Corrections and a contract medical services provider stemming
from the former inmate’s suicide. Id. at 567. The South Carolina Court of Appeals
affirmed summary judgment against the personal representative plaintiff on the basis
that “any deficiency in treatment was too attenuated from [the former inmate’s] death to
have proximately caused it because he committed suicide over a year after his discharge
[from the medical contractor’s custody].” Id. In so finding, the court relied not only on
the passage of time, but also on unforeseeable intervening acts, including the inmate’s
abuse by prison guards, that broke the chain of causation. Id. McKnight does not compel
a similar outcome in this case because the three weeks between Mr. Rice’s discharge and
his death is far less than the thirteen months that passed in McKnight, and the court finds
no unforeseeable intervening acts alleged in Mrs. Rice’s complaint similar to the
intervening acts in McKnight. The court’s Order of Dismissal that cited McKnight in
reaching the opposite conclusion was erroneously based on the “general rule” that suicide
was a superseding force that automatically broke the causal chain as a matter of law, such
that the court found Mr. Rice’s shoot-off with the police to be an intervening force
comparable to those in McKnight.
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and Mr. Rice’s death and are sufficient to survive a motion to dismiss on Mrs. Rice’s
negligence claims.
IV. CONCLUSION
For the reasons set forth above, the court DENIES the motion to dismiss.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 21, 2022
Charleston, South Carolina

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