Some mentally ill patients are clearly in danger of harming themselves. Mental health care providers must heed the warning signs.

By Robert K. Jenner and Bryant Welch
Originally published in American Association for Justice, May 2001

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Clark is a 14-year-old boy with a mental illness. He is suicidal and often engages in reckless, life-threatening behaviors. His parents seek psychiatric care for him. Clark is referred to a locked, in-patient psychiatric facility to prevent him from engaging in dangerous behavior.

The hospital psychiatrist diagnoses a severe mental illness and develops a comprehensive, 7- to 10-day treatment plan. Immediately after developing the plan, the psychiatrist, succumbing to pressures from an HMO reviewer, determines that further psychiatric care or confinement does not "meet criteria."

Clark is released from care after 24 hours. He goes home and shortly thereafter dies from the same high-risk behavior that led his parents to seek treatment for him.

In cases like this hypothetical one, involving suicide or other self-destructive behavior, defendants focus their defense on the patients’ self-imposed, harmful conduct. The central issue is this: If mentally ill patients receive negligent psychiatric treatment for life-threatening behavior–the foreseeable result of which is death–are malpractice actions vulnerable to the affirmative defenses of contributory negligence or assumption of the risk when patients die from the very behaviors for which they sought treatment?

Plaintiff counsel should argue that these affirmative defenses are not available to defendants in these circumstances. While acts by patients to harm themselves are volitional in that the patients intentionally act to jeopardize their own well-being, the acts cannot negate the duty of psychiatrists or hospitals to take reasonable steps to prevent them. As stated in a recognized medical malpractice text, "There can be no comparative negligence on the part of a patient who commits suicide where the psychiatric staff’s duties include preventing the self-destructive act that causes the patient’s death."¹

Simply put, under these circumstances the defendants should not be able to benefit from the doctrine of contributory negligence. This defense should be inapplicable when a patient’s conduct provides the occasion for care or treatment that, later, is the subject of a malpractice claim. It should also be inapplicable when the patient’s conduct contributes to an illness or condition for which the patient seeks the care or treatment on which a subsequent medical malpractice [claim] is based.²

Cowan v. Doering³ is a New Jersey case that directly addresses this issue. In Cowan, the plaintiff had a history of self-destructive behavior. She was admitted to a hospital for treatment and observation following an overdose of pills. While there, she flung herself out a second-story window and was severely injured.

She sued the hospital and physicians for failing, after her overdose, to order a "suicide watch" that would have given her constant attention and presumably prevented her jump. A jury returned a verdict in her favor, and the defendants appealed, claiming that the trial court improperly refused to give a contributory negligence jury instruction.

The New Jersey Superior Court Appellate Division affirmed the trial court and recognized that the "plaintiff committed the very act that defendants were under a duty to prevent."⁴ The New Jersey Supreme Court affirmed, stating:

[T]he appellate division ruled that under the circumstances of this case, contributory negligence, in any sense, was not a relevant issue. The precise basis for this ruling is that in these circumstances the defendants’ duty to care for Ms. Cowan included particularly the duty to exercise reasonable care to prevent her from engaging in self-damaging conduct; because it would serve to excuse defendants’ own failure to exercise reasonable care, such conduct by the plaintiff could not be the basis of a contributory negligence defense.⁵

Courts nationwide are in accord. In Cole v. Multnomah County,⁶ the plaintiff was a prison inmate who exhibited aberrant behavior and informed the guards of his desire to harm himself. Prison officials did nothing in response, and the plaintiff was seriously injured when he set fire to his bedding. He sued the prison for failing to take appropriate measures to, in essence, protect him from himself.

The Oregon Court of Appeals stated that the trial court’s contributory negligence instruction was given in error:

Here, plaintiff contends that the failure of defendants to furnish him medical attention or otherwise prevent him from attempting suicide was a negligent breach of duty. Defendants’ allegations of contributory negligence simply restate what plaintiff alleged in his complaint–that he was driven by mental illness to attempt suicide. Under these circumstances, the acts which plaintiff’s mental illness allegedly caused him to commit were the very acts which defendants had a duty to prevent, and these same acts cannot, as a matter of law, constitute contributory negligence.⁷

In Vistica v. Presbyterian Hospital and Medical Center,⁸ cited and relied on by the court in Cole, the patient entered a psychiatric facility after an attempt at self-mutilation. She was placed on a suicide watch that, unfortunately, was inadequate–the patient killed herself by jumping out a window.

The California Supreme Court ruled that the hospital had a duty to safeguard her from the danger of her mental state, including the duty to use reasonable care to prevent self-inflicted harm. The court ruled that the jury was properly instructed that as a matter of law the patient was not contributorily negligent.⁹

These courts recognized that it is anomalous to hold that a mental health care defendant has a duty to keep a person in a hospital or place him or her in residential care and to treat the patient’s high-risk behavior, but later to fault the patient for failing to curb the problem.

Taken to their conclusion, these arguments say that once a treating doctor determines that a patient has a tendency toward high-risk behavior that endangers himself or herself and others, the doctor could intentionally fail to treat the condition without any consequences. The doctor could release the patient from supervisory custody without therapy and be held totally unaccountable for this dereliction of duty. This scenario is tantamount to "strict nonliability" for mental health care professionals.

Countering the defenses

The plaintiff attorney should begin by showing the duty of the health care professional to the patient. Experts for both plaintiffs and defendants usually acknowledge that the standard of care requires psychiatrists to protect patients from injuring themselves. Virtually all courts recognize that a psychiatric hospital has a duty to provide whatever care the circumstances–including known mental and physical conditions–may reasonably require.¹⁰

The physician is under a duty to prevent foreseeable, self-inflicted harm. But unlike the traditional malpractice duty, something more is involved where mental health issues are concerned.

Some courts have recognized a "special relationship" between mental health patients and professionals who are deemed to have training and expertise that enables them to detect mental illness or the potential for suicide and who have the power or control necessary to prevent attempts at suicide.¹¹ The reasoning in the case of Winger v. Franciscan Medical Center¹² is compelling.

In that case, an Illinois appellate court examined the issue of whether a psychiatrist and medical center could be liable for a patient’s death when the patient committed suicide while in the psychiatrist’s care and custody but was not insane at the time of taking his or her own life. The court said yes, so long as the suicide was reasonably foreseeable and the defendants breached the applicable standard of care.

The court imposed liability, despite the medical center’s claim that the patient’s intentional conduct absolved the physician of any responsibility toward the patient. The court recognized that even though a patient may appreciate the consequences of his or her actions, there are varying degrees of mental affliction. Indeed, it is not uncommon for a patient to work against a physician’s attempt to cure the condition–a behavior recognized as a by-product of mental illness.¹³

Under these circumstances, to absolve the caregiver of liability would be imprudent and would divest the mental health care profession of any standard of care. Rather than absolve the physician of liability when self-destructive conduct is reasonably foreseeable, the better approach is to require reasonable precautions in light of the special relationship between the physician and the patient. As the New Jersey Superior Court Appellate Division held in Cowan,

Where it is reasonably foreseeable that a patient by reason of his mental or emotional illness may attempt to injure himself, those in charge of his care owe a duty to safeguard him from his self-damaging potential. This duty contemplates the reasonably foreseeable occurrence of self-inflicted injury regardless of whether it is the product of the patient’s volitional or negligent act.¹⁴

Other courts nationwide have echoed the sentiment that mentally ill people deserve special recognition under the law when they have been negligently treated. For example, in Champagne v. United States, the North Dakota Supreme Court responded to certified questions concerning the nature of a patient’s fault in a psychiatric malpractice case. In its ruling, the court recognized:

This case is different from the typical medical malpractice case because plaintiff here alleges medical malpractice by a psychiatrist treating a suicidal patient who ultimately committed suicide. The critical distinction between this case and all other medical malpractice cases is that here the patient does not share the goal of his physician of getting better; while the doctor is working to assist the patient to suppress suicidal tendencies, the patient, by the nature of his illness, may be working at cross-purposes to his doctor’s suggestions and may not be interested in following instructions designed to enable him or her to safely take prescribed medication.¹⁵

With the assistance of expert testimony, the plaintiff attorney should be able to explain that a mentally ill person can be expected to care for himself or herself only to the extent that the patient’s diminished capacity permits. As the suicidal patient’s capacity decreases, the medical provider’s responsibility increases.

Statutory support

In some cases, courts have interpreted state or federal statutes to determine whether a mental health provider has a duty to protect patients from their own potential to harm themselves. That determination may depend on whether the patient was under the provider’s custodial care. At least two states–Maryland and Idaho–have enacted statutes relevant to the care of minors. These laws offer heightened protection to children in schools.

In Eisel v. Board of Education, the Maryland Court of Appeals–the state’s highest court–ruled that when an adolescent with a mental illness seeks the help of a mental health professional, a subsequent harmful act by the adolescent related to the illness cannot be the proximate cause of his or her injuries.¹⁶

Relying on the state’s Youth Suicide Prevention School Program Act,¹⁷ the court ruled that a school counselor had a duty to a student whom the counselor knew had expressed a desire to harm herself. It found that the self-destructive conduct of children who are depressed cannot insulate those professionals charged with caring for them and cannot be the legal cause of the harm:

Legally to categorize all suicides by adolescents as knowing and voluntary acts which insulate the death, as a matter of law, from all other acts or omissions which might operate, in fact, as causes of the death is contrary to the policy manifested by the act. The act does not view these troubled children as standing independently, to live or die on their own. In a failure to prevent a suicide case, Maryland tort law should not treat an adolescent’s committing suicide as a superseding cause when the entire premise of the act is that others, including the schools, have the potential to intervene effectively.¹⁸

In the Idaho case, Brooks v. Logan,¹⁹ a child expressed suicidal thoughts in a writing assignment reviewed by a teacher. After the student’s suicide, the parents sued the school for breach of its duty to assist a student who suffered from depression and suicidal ideation.

They contended that an Idaho law created a statutory duty requiring a school district to act reasonably in the face of foreseeable risks of harm.²⁰ The Idaho Supreme Court agreed, concluding that the statutory duty "exemplifies the role of the state to the children in school, which is a role described as one in loco parentis."²¹

These cases, and the statutes they interpret, support the theory that a responsible party–such as a school or a mental health care provider–has a duty to care for a person who has clearly demonstrated a potential to harm himself or herself. This is especially true when the suicidal person is in the custodial care of the responsible party.²²

Jury considerations

Psychiatric treatment cases are especially vulnerable to juror attitudes. For jurors who do not understand the painful and debilitating nature of mental illness and the effect it has on behavior, the idea that anyone other than the patient should be held responsible for his or her own self-destruction violates their sense of individual responsibility.

For many jurors, suicide is a choice–a bad one, an immoral one, a stupid one, perhaps–but a choice nonetheless. Conservative judges share this viewpoint. The plaintiff attorney in a suicide case must understand from the outset that this attitude is a major threat to the client’s case no matter how meritorious the case may be.

The problem is complicated by other misunderstandings that the public, including judges, hold about the nature of mental illness and treatment. For example, laypeople often wonder how we can expect a doctor to prevent patients from deciding to kill themselves, especially after they leave the hospital. The answer is well known to every mental health practitioner. Psychiatric research has uncovered numerous "risk factors" for suicide. The mental health care provider must evaluate these factors in a patient by considering the following questions, among others: Has the patient attempted suicide previously? How long ago? How potentially lethal was the attempt? Is there a family history of suicide?

A competent psychiatrist will take an extensive history of the patient and make an assessment of all the risk factors in the context of the other current psychiatric symptoms before agreeing to a discharge. If the doctor makes a cursory assessment and, as is often the case today, simply discharges the patient because of pressure from a managed care company, that psychiatrist may be liable for malpractice. If the assessment is done properly, in the vast majority of cases, suicide can be prevented.

When patients leave the hospital in an untreated suicidal condition, suicide is a foreseeable risk. The fact that the suicide occurred outside the hospital ought not exempt the doctor from negligence in making the discharge. Suicide risk assessment is the single most important part of psychiatric discharge.

In voir dire, the attorney must ask and pursue questions designed to elicit jurors’ attitudes about mental illness, suicide, and psychiatry. The attorney can ask jurors to indicate their level of agreement or disagreement with a few simple statements about these issues, such as "suicide is a sin" and "mental health is all too often used as an excuse." Jurors can use a scale of 1 to 10 to indicate how strongly they agree or disagree with the statement. The results will give the attorney an idea of which jurors are most likely to blame the patient for his or her own injury or death and which are likely to be sympathetic.

Giving unsympathetic jurors a contributory negligence instruction is like throwing gasoline on a fire: The instruction validates their attitude and makes it easy for them to ignore the defendant’s responsibility for the patient’s death or injury. To resist this attitude, the lawyer, from the beginning, must reveal the contributory negligence argument for what it is: a blame-the-victim defense. The focus must remain on the defendant’s conduct. This will dramatically weaken the defendant’s message that the plaintiff is trying to avoid responsibility.

Mental health professionals who negligently treat or intentionally mistreat the mentally ill should not be excused from legal accountability. It is logically indefensible for courts to grant blanket immunity to any health care provider who negligently treats patients who have sought treatment for mental illnesses that make them prone to harming themselves. Negligent health care providers should never have access to the doctrines of contributory negligence or assumption of the risk when their duties include preventing the self-destructive act that causes a patient’s death or injury.

Notes

1. DAVID M. HARNEY, MEDICAL MALPRACTICE §10.3 (3d ed. 1993) (citing Brandvain v. Ridgeview Inst., Inc., 372 S.E.2d 265 (Ga. Ct. App. 1988), and McNamara v. Honeyman, 546 N.E.2d 139 (Mass. 1989)).
2. Id. §24.1, at 564, cited in Cobo v. Raba, 495 S.E.2d 362, 366 (N.C. 1998).
3. 545 A.2d 159 (N.J. 1988).
4. 522 A.2d 444, 450 (N.J. Super. Ct. App. Div. 1987).
5. 545 A.2d 159, 162-63 (emphasis added).
6. 592 P.2d 221 (Or. Ct. App. 1979).
7. Id. at 223.
8. 432 P.2d 193 (Cal. 1967).
9. Id. at 196; see Hunt v. King County, 481 P.2d 593 (Wash. Ct. App. 1971); Bramlette v. Charter Med.-Columbia, 393 S.E.2d 914, 919 (S.C. 1990). Cf. Lomayestewa v. Our Lady of Mercy Hosp., 589 S.W.2d 885, 887 (Ky. 1979) (a psychiatric hospital cannot advance contributory negligence or assumption of the risk as a defense for its failure to adhere to regulations that would have prevented the injury).
10. See, e.g., State ex rel. Shockey v. Washington Sanitarium and Hosp., 165 A.2d 764, 765-66 (Md. 1960); DeMontiney v. Desert Manor Convalescent Ctr., Inc., 695 P.2d 255, 259 (Ariz. 1985); City of Belen v. Harrell, 603 P.2d 711, 713-14 (N.M. 1979). See also RESTATEMENT (SECOND) OF TORTS §314A (1965).
11. McLaughlin v. Sullivan, 461 A.2d 123, 125 (N.H. 1983). See also Smith v. United States, 437 F. Supp. 1004 (E.D. Pa. 1977); Nesbitt v. Cmty. Health of S. Dade, Inc., 467 So. 2d 711 (Fla. Dist. Ct. App. 1985); Bell v. N.Y. City Health & Hosp. Corp., 456 N.Y.S.2d 787 (App. Div. 1982).
12. 701 N.E.2d 813 (Ill. App. Ct. 1998).
13. See, e.g., Peoples Bank v. Damera, 581 N.E.2d 426, 429 (Ill. App. Ct. 1991).
14. Cowan, 522 A.2d 444, 449-50; see also Meier v. Ross Gen. Hosp., 445 P.2d 519, 522-23 (Cal. 1968); Summit Bank v. Panos, 570 N.E.2d 960, 969 (Ind. Ct. App. 1991); Edwards v. Tardif, 692 A.2d 1266, 1270 (Conn. 1997).
15. Champagne v. United States, 513 N.W.2d 75, 78 (N.D. 1994); see also Tomfohr v. Mayo Found., 450 N.W.2d 121 (Minn. 1990).
16. 597 A.2d 447, 454 (Md. 1991).
17. MD. CODE ANN., EDUC. §§7-501 to 7-506 (2000).
18. Eisel, 597 A.2d 447,454 (emphasis added).
19. 903 P.2d 73 (Idaho 1995).
20. IDAHO CODE §33-512(4)(2000).
21. Brooks, 903 P. 2d 73, 79.
22. When the care is noncustodial, the existence of a duty may be harder to establish. See, e.g., Lee v. Corregedore, 925 P.2d 324 (Haw. 1996).

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