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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

JACOB M. APPEL
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Cambridge Quarterly of Healthcare Ethics , Volume 21 , Issue 4 , October 2012 , pp. 527 - 536
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Copyright © Cambridge University Press 2012

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References

Notes

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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.

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

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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.

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

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38. See note 7, Walsh 1987.

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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):993–1006.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.

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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.

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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.

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