Sharpe Ex Rel. Estate of Sharpe v. South Carolina Department of Mental Health , 292 S.C. 11 ( 1987 )

Shaw, Judge:

In this action for damages based on the alleged wrongful death of his brother, appellant, James L. Sharpe, as Administrator of the Estate of Bobby Charles Sharpe, Deceased, appeals the trial court’s judgment for respondents, South Carolina Department of Mental Health; Oliver Norman Evans, M.D.; and Patrick H. McDonaugh, M.D. (hereinafter “defendants”). We affirm.

On April 30, 1979, the deceased, Bobby Sharpe, and a friend, Frank Smith, were working on a car beside the trailer in which William G. Sevits lived. Sevits, after asking the two men to keep the noise down because he had a headache, fired a shotgun from his window killing Sharpe and wounding Smith.

The record reveals Sevits had a history of mental illness and received treatment dating back to 1973. On February 2, 1979, Sevits voluntarily admitted himself to the G. Werber Bryan Psychiatric Hospital which is operated by the South Carolina Department of Mental Health. He was treated and then released on February 23, 1979, after twice requesting discharge. Sevits was advised of his need for outpatient treatment and an appointment was set up for him at the Columbia Area Mental Health Center. He was also given medication to take through his first scheduled appointment.

Sharpe’s complaint alleges the defendants were negligent in the treatment and discharge of Sevits as well as in failing to issue proper warnings to “the community.” All parties waived a jury trial. The trial judge found for the defendants and dismissed the action.

Sharpe argues the trial judge erred in (1) excluding the deposition of Sharpe’s only expert witness, (2) failing to apply the “common knowledge” exception to the requirement of expert testimony in proving negligence and proximate cause, and (3) holding the defendants had no “affirmative duty to warn of the release of a violent patient in the absence of specific threats of harm to a particular individual. ...”

I.

The admission of evidence is discretionary with the trial judge, and this court will not disturb the judge’s decision absent a clear showing of an abuse of that discretion, with resulting prejudice to an appellant. Cudd v. John Hancock Mutual Life Insurance Company, 279 S. C. 623, 310 S. E. (2d) 830 (Ct. App. 1983).

Sharpe sought to introduce at trial the deposition of Dr. John W. Davis, a psychiatrist. Dr. Davis never treated Sevits and had no personal knowledge of the facts of this case. The defendants objected because Dr. Davis’ opinions are not based on any “probable hypothetical question.” Sharpe argued a hypothetical question is unnecessary. The trial judge disagreed, ruling an opinion by an expert witness without firsthand knowledge of the facts, must be based on a proper hypothetical question. We agree. This rule was recently reaffirmed by this court in Logan v. Gatti, 289 S. C. 546, 347 S. E. (2d) 506 (Ct. App. 1986). We hold the trial judge did not err in excluding the deposition on this ground.¹

II.

Sharpe argues expert scientific knowledge is not necessary to conclude the defendants were negligent and, thus, the trial judge erred in finding such evidence is necessary.

First, we note this position is inconsistent with Sharpe’s attorney’s arguments at trial:

... the only way we can show negligence on the part of ... [the defendants] in the treatment is for an expert to say where did they go wrong in failing to prescribe a certain medication and so forth.

The attorney later, in arguing for a new trial, stated:

It was essential for proof of our case that we have evidence by a competent psychiatrist, establishing that there were deviations on the part of the defendants here from the standard of proper medical care with respect to patient’s evidence.

Second, we hold the proper treatment of a mental patient like Sevits and the standard of care required in deciding to discharge him under a plan of outpatient care is not a matter of common knowledge to the average layman. The application of the common knowledge exception to the requirement of expert testimony in proving negligence depends on the particular facts of a case. We hold it is not proper on these facts.

III.

The trial judge, in his order, held that South Carolina has not “recognized a general duty to warn of the dangerous propensities of others.” We are aware some states have imposed a duty on therapists, based on a therapist-patient relationship, to warn third persons when there is a danger to a specific person from the therapist’s patient.²

However, this issue is not before us. There was no identifiable threat to Bobby Sharpe on these facts. In fact, the decedent, Bobby Sharpe, did not move into the trailer park where Sevits lived until after the defendants discharged Sevits. Nothing in the record indicates Sevits and Sharpe knew each other prior to Sevits’s discharge.

Sharpe argues the case of Crowley v. Spivey, 285 S. C. 397, 329 S. E. (2d) 774 (Ct. App. 1985), imposes a general duty to warn on a physician of a potential danger to the public at large by a patient. We disagree.

In Crowley, a couple divorced and the father later obtained custody of the couple’s two children from the mother. When the father learned the mother, who had received treatment for paranoid schizophrenia for eight years, had obtained a gun, he informed the mother’s parents, the Spiveys, he would no longer permit any visitation outside his home. The Spiveys assured the father they would supervise the care and safety of the children during the mother’s visitation with the children in the Spiveys’s home. During such a visit the mother shot and killed the two children. This court affirmed jury verdicts for damages in suits brought by the father for the wrongful death of each child. However, the court did not declare a general duty to warn of a danger to unknown third persons based on any special relationship. The court found a duty of care existed in that case “... grounded in the legal proposition that one who assumes to act, even though under no obligation to do so, may become subject to the duty to act with due care.” We hold it is patent from a reading of the case that Crowley does not support Sharpe’s argument in this case. The trial judge did not err in finding the defendants had no duty to warn anyone in this case.

Affirmed.

Gardner, J., concurs. Bell, J., concurs in a separate opinion.

1 Even the use of proper hypothetical questions would not necessarily have made Dr. Davis’ testimony admissible. It is not at all clear, as Sharpe contends, that under Rule 87(D)(3), Rules of Practice for the Circuit Courts of South Carolina, a deposition is admissible simply on the basis of the attorney’s statement the deposition is absent from the state. See Stone v. Guaranty Bank & Trust Co., 270 S. C. 331, 242 S. E. (2d) 404 (1978).

2 For example, see Tarasoff v. Regents of University of California 17 Cal. (3d) 425, 131 Cal. Rptr. 14, 551 P. (2d) 334 (1976).