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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

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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.

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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

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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

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31. See note 7, Walsh 1987.

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

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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

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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

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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

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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

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