"Magical Thinking," Suicide, and Malpractice Litigation
Harold Bursztajn, MD; Thomas G. Gutheil, MD; Archie Brodsky; and Evelynne
L. Swagerty, JD
Bull Am Acad Psychiatry Law, Vol. 16, No. 4,1988
Prospective clinical assessment of suicidality differs significantly
from that used retrospectively in malpractice litigation. In the latter
context, the judge or jury may be susceptible to hindsight reasoning
and a disproportionate emphasis on the specific method of suicide, exaggerating
its foreseeability and "magically" linking the means of death to
the treating clinician, especially in the case of suicide by an overdose
of prescribed medication. Such magical thinking, moreover, is rooted
in the clinical context of suicide: The errors of reasoning observed
in the courtroom exhibit striking parallels with the mind-set of the
suicidal patient. An understanding of these dynamics suggests appropriate
precautions for the clinician and thus contributes to the prevention
both of suicide and of malpractice litigation.
The authors acknowledge their indebtedness to Victoria Alexander for significant
editorial contributions to the preparation of this manuscript. Drs. Bursztajn
and Gutheil, Ms. Swagerty, and Mr. Brodsky are affiliated with the Program
in Psychiatry and the Law, Massachusetts Mental Health Center, 74 Fenwood
Rd., Boston, MA 02115. Address reprint requests to Dr. Gutheil.
In considering malpractice liability for a patient's suicide, the courts
as a rule are appropriately respectful of the uncertainties inherent
in the assessment of suicide risk. [1] In practice,
the determination of liability is guided by two questions: "Was
the clinician's evaluation at the time sufficiently thorough to assess
the patient's suicidality? If so, were adequate preventive measures taken,
given the level of assessed risk?" Nevertheless a central problem
in all negligence cases, including malpractice, is that the determination
is made in retrospect, with knowledge of the outcome. Thus the judge
or jury may be susceptible to reasoning by hindsight ("Of course
the suicide was predictable; he killed himself, didn't he?") This
kind of hindsight reasoning (which is one form of magical thinking as
we refer to it here) [2] obscures the prospective uncertainty
of the outcome, exaggerates its foreseeability, and scants the possible
therapeutic benefits of less restrictive treatment options.
A hallmark of magical thinking in the aftermath of suicide is a disproportionate
emphasis on the specific means of self-destruction, particularly when
connected with the treating physician. Thus the physician (even when
not actually negligent) may be a more likely target for accusations of
negligence if a patient overdoses with medications prescribed by that
physician than if other means of suicide are used. Yet magical thinking
is much more than simply an artifact of litigation, for it is deeply
rooted in the ecology of suicide. In this article we shall explore both
the clinical and judicial manifestations of magical thinking in the context
of suicide. By understanding the errors of perception and logic that
may characterize suicidality as well as litigation in the wake of suicide,
psychiatrists can equip themselves to perform better suicide assessments
and help prevent malpractice liability by reducing the risks both of
the tragic outcome itself and of judicial misinterpretation after the
fact.
Magical Thinking in Malpractice Litigation
Unexamined, erroneous assumptions about causality and responsibility that
typically underlie malpractice actions based on suicide are illustrated
in the following vignette:
A middle-aged woman was hospitalized for depression with some
suicidal ideation. Treated with antidepressant medication, she showed
consistent improvement in mood over the course of several weeks in the
hospital. At the end of that period, the patient prepared for her discharge.
Since she was planning to spend some time out of state in an area where
pharmacies were scarce, she asked for a month's supply of her antidepressant
medication. Her physician, recalling that the patient had been seriously
suicidal when she was off the medication and noting that she showed no
current evidence of depression, complied with this request. Two days
after discharge, the patient took her entire month's supply of medication
and died. The patient's husband sued her physician for malpractice, claiming
that the patient should not have been given such a large amount of medication,
because if taken all at once, it represented a lethal dose.
The source of possible error here lies in an inappropriate emphasis on
the specific means used for suicide. The outcome would have been the
same if the patient had hanged herself, slit her wrists, or jumped from
a window—any of which she would have been free to do outside the hospital.
Had she used any of these other means instead of the medication, the
retrospective assessment of liability might have focused more appropriately
on the question of whether she was safe to leave the hospital at the
time of her discharge.
In cases such as this, however, the need for a multifaceted evaluation
tends to be obscured by an "if only" style of wishful thinking: "If
only this one thing had [or had not] been done, the deceased would be
alive today." In the exclusive attention given to the specific means
of death the broader context of the psychiatrist's assessment of suicidality
is lost.
We propose that magical thinking in the determination of negligence for
suicide has the following distinctive characteristics: a conception of
foreseaability in absolute, yes-or-no terms as opposed to the more probabilistic,
risk-benefit reasoning in which the clinician must engage; the use of
hindsight [3] rather than reconstruction of the conditions
under which the clinician exercised foresight; failure to acknowledge
the uncertainty that surrounds clinical judgment; [4]
unicausal rather than multicausal explanation for the suicide; a perception
of the physician as active agent, the patient as passive victim; disproportionate
weight given to the specific means of death as a factor in determining
whether the suicide could have been foreseen or prevented; and a perception
of the means of death as if it were exclusively under the physician's
control.
The trial court's reasoning in Hirsh v. State of New York [5]
demonstrates the oversimplifications of magical thinking. In this case
a state hospital was charged with negligence in the death of a 38-year-old
man, diagnosed as manic depressive, depressed type, who overdosed on
Seconal. He was noted to be suicidal at the time of admission and had
attempted suicide twice (once by hanging and once by overdose) several
weeks earlier at another hospital. The source of the Seconal was never
determined.
The trial court held that "the State violated simple rules which
should have been followed so that [the patient] could not have taken
his own life." Specifically, the court stated that the hospital
staff should have inspected the patient's person and bed so that any
unauthorized possession of medications could not possibly have gone undetected:
The decedent would have committed suicide only in either
of two ways. Either be had the Seconal in his clothing, in which
case the hospital should have found and removed it, or he procured
it in the hospital from the dispensary or storeroom or from a person
in the hospital. In either of these cases, the State would have been
negligent ... [emphasis added].
All the elements of magical thinking—certainty, hindsight, unicausality,
foreseeability, and a disproportionate emphasis on the means of suicide—are
present in this statement. The host of possible paths to suicide is reduced
to the single issue of the patient's access to the instrument actually
used.
Although the patient was known to be at high risk for suicide, the trial
court focused exclusively on the instrument of death and the patient's
access to it. The court thus assumed, first, that prevention of the patient's
suicide was merely a matter of taking sufficient precautions (however
restrictive) and, second, that had the hospital staff prevented the patient's
access to the pills, the patient would still be alive. The appellate
court took a different view and reversed the judgment of negligence:
The State could not have provided an employee to watch every
move by this unfortunate man during 24 hours of the day. We are not persuaded
that it is evidence of negligence that he was not repeatedly wakened
and his bed searched during the night. If institutions for the mentally
ill are required to take all of the precautions contended for in this
case, and are to be held liable for such debate mistakes in judgment,
patients would be kept in strait jackets or some other form of strict
confinement which would hardly be conducive to recovery ... An ingenious
patient harboring a steady purpose to take his own life cannot always
be thwarted.
This realistic assessment reflects an awareness of uncertainty, of the
need to balance risks against benefits, and of the patient's actions
as an independent cause contributing to the outcome.
When the question of negligence in the wake of suicide is reduced to "how
the patient got those pills" or "why that window was left open," the
actual complexity of the circumstances leading to suicide is obscured.
The underlying assumption about cause and effect is magical in that it
is more certain, simplistic, and symbolically based than is the reality
of clinical practice. Through this type of magical thinking, the links
between the death and its instrument, and between the instrument and
its "dispenser" (the physician or hospital) may offer a tempting
psychological shortcut to the fixing of blame. We suggest that this process
may influence the outcome of negligence litigation in an inappropriate
manner.
The determination of negligence in this area should best focus on two
questions: the adequacy of the clinician's assessment of suicidality
and the adequacy of the precautions taken to prevent a foreseeable suicide
attempt. In addressing these questions, the courts have recognized that
neither the prediction nor the prevention of suicide can be accomplished
with certainty. Moreover, the fact that risks are inherent in therapeutic
measures does not itself prove negligence when harms result; instead,
the risks of treatment (including suicide itself) must be weighed against
the potential benefits. [1]
Suicidality and Magical Thinking
A court's attribution of special meaning to the particular means of suicide
may coincide with its special meaning for the patient. For example, the
choice of pills prescribed by the physician may reflect the patient's
experience of the therapeutic relationship. From a psychodynamic standpoint,
Abraham's model of predisposition to melancholia involving the oral phase
of development may explain the depressed suicidal patient's susceptibility
to using the physician's medication for an overdose. [6,7]
Clinicians know that for such patients oral medications often have powerful
symbolic meaning (e.g., as the mother's poisoned milk).
Beyond the choice of a particular means of suicide, there is another,
perhaps deeper correspondence between magical thinking as manifested
in suicide litigation and in suicidality itself. The flaws of reasoning
that may distort the retrospective judicial assessment of suicidality
have clinical parallels in the reasoning of suicidal patients. For example,
the absolute, black-and-white reasoning that may characterize litigation
after suicide is analogous to the dichotomous thinking (ideal life versus
death) of the suicidal person. [8] Judgment from hindsight
is observed in the pressed person's guilt and regret over losses ("I
should have done" such and such). Failure to acknowledge uncertainty
is mirrored by the deterministic hopelessness characteristic of depression—the
certainty that one's mood will never change. [9] Moreover,
the tendency to rely on a unicausal explanation is also characteristic
of the depressed person's tendency to see either the self (internal causation)
or the world (external causation) as the sole cause of difficulties.
[9] The judicial perception of the patient as powerless
and the physician as omnipotent may thus be identical with the patient's
own perception.
These striking parallels between characteristic modes of perception in
the legal and clinical contexts of suicide can be explained in two (not
necessarily mutually exclusive) ways. First, suicidal patients may exhibit
in intensified form some common fallacies to which human intuition and
reasoning are susceptible in the face of a difficult, anxiety-provoking
decision. [10-12] In addition, suicidal patients may "infect" not
only family members and clinicians [13,14]
but, secondarily, attorneys, judges, and juries with their pathological
style of thinking—in particular, a need to exact retribution, the law
of the talion, [15] insofar as suicide may be, in part,
a retributive act. Just as the patient's suicide "punishes" the
family, so the family may wish to punish the physician.
The following case illustrates the way in which a suicidal patient may
act on the basis of magical meanings attached to prescribed medication:
A borderline adolescent with juvenile-onset diabetes took a
massive overdose of her own injectable insulin and left the empty bottles—
each with the prescribing (i.e., treating) psychiatrist's name on the
label—in that psychiatrist's mailbox. Subsequent litigation turned upon
the issue of the patient's responsibility for keeping and managing her
own insulin while hospitalized for depression and impulsivity. Although
she had made previous suicide attempts, some serious, she had not used
this method before, nor had she given warning of increased suicidal intent.
In this case the grounds for finding the physician negligent on the basis
of the means of suicide would be relatively weak. There remains, however,
the troubling fact that the patient chose this particular means as a
clear expression of hostility toward the physician. Under such conditions,
then, we may infer that some patients, when suicidal, may be more at
risk for using a physician-prescribed means of death than other means.
What therapeutic measures can be taken to protect patients who are likely
to act out in this way, without denying them the benefits of medications
or abandoning the many patients for whom the benefits exceed the risks?
At the same time, how can clinicians protect themselves against the retrospective
imputation of blame in the event of suicide? The following case exemplifies
a comprehensive therapeutic approach in which the risk of the patient's
engaging in magical thinking with respect to medications is anticipated
and assessed along with other risks and benefits:
A woman with a history of alcoholism, oppression, and mood swings
was admitted following a massive, self-administered overdose of insulin
prescribed for her diabetic son. By the time of her psychiatric admission
the patient no longer exhibited the vegetative symptoms of depression
present before her suicide attempt. Instead she became manic during
her first two weeks in the hospital. During this period the factors
precipitating the overdose were explored. Not diabetic herself the
patient had suffered the death of a brother from complications of
diabetes two years earlier. At the time of the overdose she felt
that her relationship with her son was threatened by his impending
marriage. By overdosing on her son's insulin she unconsciously sought
to reestablish a close connection with her deceased brother as well
as with her son.
The risks and benefits of medication were discussed with the patient
in the context of her recent reaction to loss. In her case the usual
risks of lithium were exacerbated by an additional risk—namely, that
she might overdose, magically to join her dead brother, who had worked
for a firm that made lithium. Since she was not depressed at the
time, the risks of lithium were judged to outweigh the benefits.
During her hospitalization, when the patient became manic, she agreed
to a trial of the neuroleptic drug perphenazine, which has a therapy/toxicity
index of 100/1, as compared with 3/1 for lithium,[16] and thus has
a lower likelihood of life-threatening complications with an overdose.
The patient's mania cleared within days. The remaining four weeks
of hospitalization were spent monitoring the effects of the drug
and beginning psychotherapy. At the time of discharge the risks and
benefits of outpatient medications were reviewed with the patient.
Lithium prophylaxis was thought to be contraindicated in part because
the patient had become euthymic. Also, she still had not completed
the process of grieving. She was assessed as being at risk both for
acting on the medication's magical association with her brother and
for resuming alcohol use with increased impulsivity. Therefore, with
the patient's consent, lithium was not prescribed on discharge. The
daily dosage of perphenazine was gradually tapered, and outpatient
follow-up was arranged.
Six months later, as she experienced her grief more fully, the patient
became depressed and started drinking again. Admitted at her own
request, she became manic as she worked through her grief. After
her condition had stabilized, she was judged competent to disclose
her suicidality (if present) and to address the risks and benefits
of lithium. After the magical associations of lithium had been further
clarified in psychotherapy, the patient and her physicians together
decided that the risks of long-term use of perphenazine now outweighed
the risk of an overdose of lithium. Two weeks after admission perphenazine
was discontinued and lithium begun. A euthymic response occurred
rapidly. During the ensuing four weeks of therapy the competence
assessment and risk-benefit discussions were repeated, and it was
judged safe to discharge the patient on lithium. One year later,
the patient was functioning well and continuing with outpatient therapy.
In this case the patient's alcoholism, her prior use of insulin to establish
a self-destructive bond with her brother and son, and her brother's involvement
in the manufacture of lithium alerted her therapists to the heightened
significance that lithium might have for her. In planning her treatment,
they were able to anticipate and avoid the possibility that the patient
might act on these special meanings, with potentially destructive consequences.
The magical meaning that medications may have for a suicidal patient does
not justify blaming a suicide retrospectively on the single act of prescribing;
that is, the patient's magical thinking does not validate magical thinking
on the part of attorney, judge, or jury. When the patient has a specific,
clinically relevant rationale for choosing a means of suicide, however,
the clinical and legal question is whether that rationale has been properly
assessed. Thus, the alleged negligence of a physician would lie not in
the act of prescribing but in the failure to consider the risk of magical
thinking on the part of the patient and to address it with the patient.
For the physician the clinical and legal pitfall would be to allow precautions
related to a particular means of suicide to obscure the ever-present
need for a broad and careful assessment of suicidality, followed by appropriate
standard precautions, irrespective of a particular means of self-harm.
For example, the practice of prescribing small doses of medication, which
some clinicians favor, may or may not impress a judge or jury with the
clinician's foresight, but it is unlikely to deter patients' intent on
self-destruction, [17] inasmuch as they can easily
save small weekly doses until a lethal supply is at hand, obtain medications
from more than one source, or use drugs prescribed for someone else.
Moreover, many other means of suicide are available, even in the clothing
worn to the physician's office. By relying on limited doses of medication,
the clinician may naively assume that no other preventive measures are
necessary.
The use of frequent small prescriptions may yet be therapeutic insofar
as it communicates the therapist's concern for the patient's well-being
or cognizance of the danger of impulsivity. If used without the patient's
active participation and consent, however, this practice may instead
communicate a patronizing distrust of the patient or a defensive posture
on the part of the physician, which in turn may invite dangerous regression.
[17] When the clinician acts without communication,
the patient is invited to do the same: the physician's "impulsivity" (i.e.,
acting without prior discussion) may thus mirror and amplify the patient's
impulsivity.
The law does not require that every psychiatrist be psychodynamically
sophisticated. However, all clinicians should be aware of the special
dynamic meanings that medications (and other oral substances and images)
have for depressed patients. Indeed, the prudent clinician will consider
the potential for magical thinking on the part of the patient and in
legal proceedings. We propose that the best precaution against magical
thinking in both the clinical and legal contexts is a carefully documented
risk-benefit analysis shared with the patient through the informed consent
procedure. [18] Discussion with the patient should
cover the risks and benefits of hospitalization versus discharge and,
secondarily, the risks and benefits of drug prescription, as we have
described.
Risks arising from the seemingly magical potency of medications can be
explored by asking the patient directly about feelings of hopelessness
and suicidal intent. [19] When the patient's vision
of an intolerable situation is brought into the open, it can be examined
critically rather than accepted fatalistically. Moreover, explicit engagement
with the patient's suicidal ideation enables patient and therapist to
form an alliance around safeguarding the patient's life as the first
priority.
Thus, when prescribing for the suicidal patient, the clinician should
ask the patient to consider—along with the other risks of medication—the
risks of magical thinking in connection with the drugs. By treating these
risks as though they were properties of the medication and by using counterprojective
techniques, [20] the clinician may encourage the patient
to express uncomfortable emotions. For example, the clinician might say, "We've
noticed that one side effect of this medicine is that it can tempt people
to take too much at once and harm themselves. You know, people have all
kinds of ideas about pills..." Special care should govern this exploration
if the patient has a history of drug or alcohol abuse, has previously
taken an overdose of prescribed medications, or exhibits personal or
family dynamics in which drugs have special meaning.
The patient's responses to such inquiries should be critically assessed.
A patient who insists, "I'll never do it," may be unwilling
to face the actual risk involved. On the other hand, one who admits, "Look,
if I really want to do it, I can always find another way," shows
some ego strength by at least disavowing magical thinking. By the same
token, the risk of the patient's withholding disclosure of suicidal intent
cannot be dismissed. Therefore, we recommend extending the assessment
of the patient's competence to weigh the risks and benefits of leaving
the hospital or taking prescribed medications. That assessment should
include an evaluation of the patient's competence to disclose suicidal
thoughts or fears, if they are present [18,19,21]
A patient whose denial of suicidal intent is delusional or grossly incompatible
with the clinical reality may be regarded as potentially incompetent
to make an honest disclosure of suicidality and thus as presenting a
substantial risk of suicide.
These competence assessments may also help prevent magical thinking in
the judicial setting. For example, in one malpractice case involving
an overdose with prescribed medication, the court decided that because
the patient had been judged competent to live outside the hospital, the
suicidal action itself, rather than medical negligence, was the proximate
cause of the patient's death. (Indeed, this was the traditional legal
view before the 1940s.) Therefore, the suicide was not a foreseeable
consequence of the physician's decision to prescribe medication. [22]
If this approach is more widely followed, so that the standard of care
for the suicidal patient includes a careful assessment of competence
in decision making, the freedom of patients will be safeguarded, and
clinicians will be freed (at least in a court of law) from the expectation
that they be clinical mind readers who exercise total control of their
patients' decisions.
Conclusion
We have suggested a clinical approach that is consistent with both the
legal and clinical imperative to give full weight of attention to the
patient's autonomy while remaining alert to the danger of suicidality.
Such careful consideration is the best available antidote to the human
tendency (in clinician, patient, judge, and jury alike) to think magically,
thereby reducing a complex web of causation and influence to a single
cause. We propose that the clinician use the informed consent dialogue
creatively, undertaking a thorough, documented assessment of the patient's
competence to weigh the risks and benefits of decreased restrictions,
of prescribed medications and their psychodynamic meanings, and of disclosure
of suicidal intent. Such assessments may well reduce both the likelihood
of suicidal actions by patients and the inappropriate use of hindsight
in malpractice litigation.
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