The Plaintiff Legal Case

From:Robert K. Jenner and Bryant Welch, Suicide watch: liability for negligent psychiatric care, Trial, 37(5), 2001.

1) Mentally ill patients receive negligent care for their life threatening behavior. The foreseeable result is death. Should the court allow defenses of contributory negligence or assumption of the risk when patients die from the very behaviors for which they sought treatment? The courts have said, no. (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) A New Jersey patient flung herself from a height in the hospital. The defense appealed the failure of the judge to give the jury an instruction on the contributory negligence defense. The appellate court found, contributory negligence, in any sense, was not a relevant issue. 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." Cowan v. Doering, 522 A.2d 444, 450. N.J. Super. Ct. App. Div. 1987. "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."

The concurring appellate courts of other states want to prevent, "strict nonliability" for mental health care professionals. They "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,... so long as the suicide was reasonably foreseeable, and the defendants breached the applicable standard of care."

The plaintiff lawyer authors assert, "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."

Then, the lawyers state, "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."

They propose excluding jurors who believe in personal responsibility for one's intentional acts, or that suicide is a sin.

From Law and the Mental Health System, 4th Ed., by R. Reisner, C. Slobogin, A. Rai, West, St. Paul, MN. pp. 729-731.

The prediction of violence has an 80% false positive rate. The lawyer argues that predictive studies also result in intervention, preventing the violent act. The overwhelming majority of patients attempting suicide were glad someone stopped them. The suicide attempt is an attempt to improve one's life. The degree of compentency is irrelevant. The burden of proof is "clear and convincing" (about 2 of 3 times likely). There is no right to commit suicide, and the liberty to do so does not fall under the protection of the Due Process Clause. Nor is any right to receive assistance in doing so (Washington v Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 2269, 2271, 138 L.Ed. 2d 772 (1997)).