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“How Hard It Is That We Have to Die”

Rethinking Suicide Liability for Psychiatrists

Published online by Cambridge University Press:  24 July 2012

Abstract

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Perspectives
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Copyright © Cambridge University Press 2012

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References

Notes

1. Camus, A.The Myth of Sisyphus. O’Brien, J, trans. Harmondsworth: Penguin Books; 1975, at 11.Google Scholar

2. Centers for Disease Control and Prevention, National Center for Injury Prevention and Control. Web-Based Injury Statistics Query and Reporting System; available at www.cdc.gov/ncipc/wisqars (last accessed 5 June 2011). The CDC reported 34,598 deaths in 2007 for an overall suicide rate of 11.3 deaths per 100,000 people.

3. Moscicki, EK.Epidemiology of completed and attempted suicide: Toward a framework for prevention. Clinical Neuroscience Research 2001;1:310–23, at 315–6.CrossRefGoogle Scholar

4. Hor, K, Taylor, M. Suicide and schizophrenia: A systematic review of rates and risk factors. Journal of Psychopharmacology 2010;24(11) Suppl 4:81–9CrossRefGoogle ScholarPubMed; Inskip, HM, Harris, EC, Barraclough, B. Lifetime risk of suicide for affective disorder, alcoholism and schizophrenia. British Journal of Psychiatry 1998;172:35–7.CrossRefGoogle Scholar

5. See note 4, Inskip et al. 1998.

6. See note 4, Inskip et al. 1998.

7. Paul Slawson, the former head of the American Psychiatric Association’s risk-management committee, once explained: “You can certainly intervene in the short run. But it is fair to say if a patient is truly suicidal and they really want to end their life, there is a great likelihood that they are going to be able to do that.” Walsh E. From couch to courtroom: Liability crisis hits psychotherapists. Washington Post 1987 Aug 3:A1.

8. Brown, GK, Beck, AT, Steer, RA, Grisham, JR. Risk factors for suicide in psychiatric outpatients: A 20-year prospective study. Journal of Consulting and Clinical Psychology 2000 June;68(3):371–7.CrossRefGoogle ScholarPubMed

9. Simon RI. Suicide risk: Assessing the unpredictable. Psychiatric Times 2003 Dec 1; Hawton, K.Assessment of suicide risk. British Journal of Psychiatry 1987;150:145CrossRefGoogle ScholarPubMed; Robins, LN, Kulbok, PA.Epidemiologic studies in suicide. Review of Psychiatry 1988;7:289.Google Scholar

10. Blinder, M.Suicide, psychiatric malpractice, and the bell curve. Journal of the American Academy of Psychiatry and the Law 2004;32:319–23, at 319.Google ScholarPubMed

11. Simon, RI.Suicide risk assessment: What is the standard of care? Journal of the American Academy of Psychiatry & the Law 2002;30(3):340–4.Google ScholarPubMed

12. Bender, E.Psychiatrists can minimize malpractice-suit anxiety. Psychiatric News 2003 Aug 15;38(16):11Google Scholar (describing being “on the witness stand after a patient commits suicide” as a “psychiatrist’s worst nightmare”).

13. Braunstein, D.Custodial suicide cases: An analytical approach to determine liability for wrongful death. Boston University Law Review 1982 Jan;62(1):177214.Google Scholar

14. Gorski, DB. The expanding liability for patient suicide. Journal of Health Law 1989;22(6):195Google ScholarPubMed. See also Scheffer v. Railroad Co., 105 U.S. 249 (1881); Salsedo v. Palmer, 278 F. 92 (2d Cir. 1921).

15. For the origins of wrongful death statutes and their purposes, see Witt, JF.From loss of services to loss of support: The wrongful death statutes, the origins of modern tort law, and the making of the nineteenth-century family. Law & Social Inquiry 2000 July;25(3):717CrossRefGoogle Scholar; Malone, WS.The genesis of wrongful death. Stanford Law Review 1965 July;17(6):1043–1076.CrossRefGoogle Scholar

16. Swenson, EV.Legal liability for a patient’s suicide. Journal of Psychiatry and Law 1986 Fall–Winter;14(3–4):409–34.CrossRefGoogle Scholar

17. Slawson, PF, Flinn, DE, Schwartz, DA. Legal responsibility for suicide. Psychiatric Quarterly 1974;48:50.CrossRefGoogle ScholarPubMed

18. Hawthorn v. Blythewood, Inc., 119 Conn. 677, 174 A 81, 1934; Stallmen v. Robinson, 364 Mo. 275, 260 SW 2d 743, 1953; Von Eye v. Hamme, 245 F 2d 756, 761, 8th Cir., 1957; Noel v. Menninger Foundation, 180 Kan. 23, 299 P 2d 38, 1956; Gregory v. Robinson, 338 SW 2d 88, 1960; Kent v. Whitaker, 58 Wash. 2d 569, 364 p 2d 556, 1961. The nine cases in which the providers prevailed are as follows: Hohmann v. Riverlawn Sanatorium, 103 NJL 458, 135 A 817, 1927; Mills v. Society of New York Hospital, 274 NYS 233, 242 App. Div. 245, 270, NY 594, 1 NE 2d 346, 1936; Stansfield v. Gardner, 56 Ga. App. 634, 193 SE 375, 1937; Dahlberg v. Jones, 232 Wis. 6, 285 NW 841, 1939; Tissinger et al. v. Wooley and Emory University, 50 SE 2d 122, 1948; Kubas v. State, 96 NYS 2d 408, 198 Misc. 130, 1949. Aff’ds 104 NYS 2d 856, 278 App. Div. 887, 1951; Gregory v. Robinson, 338 SW 2d 88, 1960; Hebel v. Hinsdale Sanatorium, 2 Ill. App. 2d 527, 119 NE 2d 506, 1954.

19. Hawthorn v. Blythewood, Inc., 119 Conn. 677, 174 A 81, 1934; Stallmen v. Robinson, 364 Mo. 275, 260 SW 2d 743, 1953; Von Eye v. Hamme, 245 F 2d 756, 761, 8th Cir., 1957; Noel v. Menninger Foundation, 180 Kan. 23, 299 P 2d 38, 1956; Gregory v. Robinson, 338 SW 2d 88, 1960; Kent v. Whitaker, 58 Wash. 2d 569, 364 p 2d 556, 1961.

20. See Slawson, PF.Psychiatric malpractice: A regional incidence study. American Journal of Psychiatry 1970;126:1302–5CrossRefGoogle ScholarPubMed; Perr, JN.Liability of hospital and psychiatrist in suicide. American Journal of Psychiatry 1965;122:631–8CrossRefGoogle ScholarPubMed. Morse, HN.Psychiatric responsibility and tort liability. Journal of Forensic Science 1967;12:305–58.Google ScholarPubMed

21. Bellah v. Greenson, 81 Cal. Ap. 3d 614, 146 Cal. Rptr. 535 (1978).

22. Knuth, MO.Civil liability for causing or failing to prevent suicide. Loyola of Los Angeles Law Review 1978–1979;12:967–999Google Scholar, at 993–4.

23. The case is Bell v. New York City Health and Hospitals Corporation 90 A.D.2d 270; 456 N.Y.S.2d 787. Several earlier cases found liability in cases in which patients had been negligently released on day passes, including Fiederlein v. City of New York Health & Hosps. Corp., 80 A.D.2d 821, and Cohen v. State of New York, 51 A.D.2d 494, affd 41 N.Y.2d 1086. For the contention that Bell was the only such case prior to 1986, see note 16, Swenson 1986, at 415.

24. The number of psychiatrists carrying malpractice insurance also tripled from 3,000 to 9,000 between 1972 and 1982. More patients suing their psychiatrists. ABA Journal 1982 Nov;68:1363. Much of the change was likely a result of the California Supreme Court’s ruling in Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976).

25. See note 7, Walsh 1987. The causes of this dramatic increase are not entirely clear. Although the impact of high-profile lawsuits such as Tarasoff v. Regents of the University of California and Osheroff v. Chestnut Lodge likely played a role, the most probable culprit is a rapid rise in both suicide awareness and theories of suicide predictability during the 1980s. Improved reporting methods and increased disclosure might also play a role in explaining this data.

26. See note 7, Walsh 1987.

27. See note 14, Gorski 1989.

28. Simon, R. Administrative psychiatry: Practice and legal regulation. In: Talbott, JA, Hales, RE, eds. Textbook of Administrative Psychiatry: New Concepts for a Changing Behavioral Health System. Arlington, VA: American Psychiatric; 2001:327.Google Scholar

29. Slovenko, R.Psychiatry in Law/Law in Psychiatry. New York: Brunner-Routledge; 2002, at 507.Google Scholar

30. Herbert W. Taking therapists to court. Washington Post 1985 Aug 18:BW6.

31. See note 7, Walsh 1987.

32. Kane C. Medical liability claim frequency: A 2007–2008 snapshot of physicians. American Medical Association, Economic and Health Policy Research; 2010 Aug; available at http://www.ama-assn.org/ama1/pub/upload/mm/363/prp-201001-claim-freq.pdf (last accessed 15 May 2011).

33. See note 22, Knuth 1978–1979, at 987.

34. Szasz, T.The Untamed Tongue: A Dissenting Dictionary. Chicago: Open Court; 1990, at 250.Google Scholar

35. Szasz, T.The ethics of suicide. Antioch Review 1971 Spring;31:717CrossRefGoogle Scholar; Szasz, T.Fatal Freedom: The Ethics and Politics of Suicide. Westport, CT: Preager; 1999.Google Scholar

36. American Psychiatric Association. Practice Guideline for the Assessment and Treatment of Patients with Suicidal Behaviors. Arlington, VA: American Psychiatric; 2003Google Scholar. See also Bongar, B.The Suicidal Patient: Clinical and Legal Standards of Care. Washington, DC: American Psychological Association; 1991.CrossRefGoogle Scholar

37. For a discussion of why controlled trials of legally mandated interventions raise grave—and possibly insurmountable—ethical and legal obstacles, see Swartz, MS, Burns, BJ, George, LK, Swanson, J, Hiday, VA, Borum, R, et al. . The ethical challenges of a randomized controlled trial of involuntary outpatient commitment. Journal of Behavioral Health Services & Research 1997 Winter;24(1):3543.Google ScholarPubMed

38. See note 7, Walsh 1987.

39. Jobes, D.Understanding suicide in the twenty-first century. Preventing Suicide: The National Journal 2003 July;2(3):2–4Google Scholar, at 3.

40. More generally, data does exist to show that risk of liability plays a role in patient choice by psychotherapists. A survey from 1987 reported that 45.9 percent of psychologists admitted to “avoiding certain clients for fear of being sued.” Pope, K, Tabachnick, BG, Keith-Spiegel P. Ethics of practice: The beliefs and behaviors of psychologists as therapists. American Psychologist 1987;42(11):9931006.CrossRefGoogle ScholarPubMed

41. Carlat D. 45,000 more psychiatrists, anyone? Psychiatric Times 2010 May 10, at 1.

42. Brown, C.Schatzberg cites reasons to be proud of APA. Psychiatric News 2010 June 18;45(12):1.CrossRefGoogle Scholar

43. Mullen, R, Admiraal, A, Trevena, J. Defensive practice in mental health. Journal of the New Zealand Medical Association 2008 Nov 28;121(1286)Google ScholarPubMed; Fear drives psychiatrists’ decisions. BBC News Online 2002 Dec 17; available at: http://news.bbc.co.uk/2/hi/health/2580115.stm (last accessed 15 May 2011).

44. Drukteinis AM. Liability for Suicide; available at http://www.psychlaw.com/LibraryFiles/SuicideLiability.html (last accessed 6 June 2011).

45. For a discussion of such claims, see Dempski, K. Emergency psychiatric admissions. In: Westrick, S, Dempski, K, eds. Essentials of Nursing Law and Ethics. Sudbury, MA: Jones and Bartlett; 2009:126Google Scholar. See also Ridgeview Institute, Inc. v. Dan B. Wingate, 271 Ga. 512, 520 S.E. 2d 445 (1999).

46. Coleman P, Shellow RA. Suicide: Unpredictable and unavoidable—proposed guidelines provide rational test for physician’s liability. Nebraska Law Review 1992;71:643–693, at 644.

47. See Morse, S.Preference for liberty: The case against involuntary commitment of the mentally disordered. California Law Review 1982 Jan;70(1):54106.CrossRefGoogle Scholar

48. Otten AA. More psychotherapists held liable for the actions of violent patients. Wall Street Journal 1987 Mar 2:21. For an excellent discussion of the impact of the breach of confidentiality often involved in such commitments, see Grabois, E.The liability of psychotherapists for breach of confidentiality. Journal of Law and Health 1997/1998;12:39.Google Scholar

49. As Levinson observes, this is precisely the approach taken by psychiatry at present (“The so-called ‘medical model’ of commitment attempts to strike a balance between individual liberties, and paternalism, with a clear bias toward the latter.”). Levenson, JM. Psychiatric commitment and involuntary hospitalization: An ethical perspective. Psychiatric Quarterly 1986;58(2):106.CrossRefGoogle Scholar

50. Valensteina, M, Kim, HM, Ganoczy, D, McCarthy, JF, Zivin, K, Austin, KL, et al. . Higher-risk periods for suicide among VA patients receiving depression treatment: Prioritizing suicide prevention efforts. Journal of Affective Disorders 2009 Jan;112(1):50–8.CrossRefGoogle Scholar

51. Hoffman has noted that the dangers of this fear extend to potential psychiatric patients more generally: “It is likely that many among our patients and the general public who are not at risk for involuntary hospitalization are afraid of our powers and hesitant to come for therapy or to share their troubles and secrets.” Hoffman, B.Is psychiatry being harmed by involuntary hospitalization and treatment?Canadian Medical Association Journal 1987 July 1;137:19.Google ScholarPubMed

52. See note 51, Hoffman 1987, at 17.

53. Other consequences of too much care in medicine or surgery are increased exposure to medical risk and the personal burdens (emotional, economic, etc.) associated with medical interventions. These consequences are certainly real, but if patients are being adequately informed and are making their own medical decisions, they are the ones deciding how to balance these trade-offs. Involuntary psychiatric patients have no such luxury.

54. For a discussion of this dominant view and its critics, see Gilbar, R.Family involvement, independence, and patient autonomy in practice. Medical Law Review 2011;19(2):192234.CrossRefGoogle ScholarPubMed

55. Stewart, K, Bowker, L.Resuscitation witnessed by relatives might lead to a complaint for breach of confidentiality. British Medical Journal 1997 Jan;314:144.Google ScholarPubMed

56. See Quill, T, Brody, H.Physician recommendations and patient autonomy: Finding a balance between physician power and patient choice. Annals of Internal Medicine 1996 Nov 1;125(9):763–9.CrossRefGoogle ScholarPubMed

57. See Quill, Brody 1996.

58. An exception to this rule might be compensation for victims of attempted suicide who are injured in the process. There are likely a very small set of successful litigations in this field, but the mechanism for dealing with such cases is beyond the scope of this article.

59. Baker, T.The Medical Malpractice Myth. Chicago: University of Chicago Press; 2005.CrossRefGoogle Scholar

60. See Young, HH.Assisted suicide and physician liability. The Review of Litigation 1991–1992;11:623.Google Scholar

61. Bongar B, Stolberg R. Risk Management with the Suicidal Patient; available at http://www.e-psychologist.org/index.iml?mdl=exam/show_article.mdl&Material_ID=100.

62. Simon, RI.Clinical Psychiatry and the Law. Arlington, VA: American Psychiatric; 2007, at 39.Google Scholar