Subjective Data and Suicide Assessment in the Light of Recent Legal Developments
Part I: Malpractice Prevention and the Use of Subjective Data
Thomas G. Gutheil,* Harold Bursztajn,** Robert M. Hamm,*** and
Archie Brodsky****
*Associate Professor, **Clinical Instructor in
Psychiatry, ****Research Associate, Harvard Medical School, Program in
Psychiatry and the Law, Massachusetts Mental Health Center, 74 Fenwood
Road, Boston, MA 02115.
***Senior Research Associate, Center for Research on Judgement and Policy,
Box 344, University of Colorado, Boulder, CO 80309.
The authors acknowledge their indebtedness to Ms. Audrey Bleakley for
her assistance in the preparation of this manuscript.
Reprint requests to Thomas Gutheil, Program in Psychiatry and the Law,
Massachusetts Health Center, 74 Fenwood Rd., Boston, MA 02115, USA.
The decidedness of my attitude on the subject of the unconscious
is perhaps specially likely to cause offense, for I handle unconscious
ideas, unconscious trains of thought, and unconscious emotional tendencies
as though they were no less valid and unimpeachable psychological data
than conscious ones. But of this I am certain — that any one who
sets out to investigate the same region of phenomena and employs the
same method will find himself compelled to take up the same position,
however much philosophers may expostulate.
Freud, Fragment of an Analysis of a
Case of Hysteria
The technological revolution in medicine [1-3]
and the fear that the courts, following the medical profession's lead,
will equate subjective data and subjective judgment with unsound, unscientific,
and even negligent practices have left psychiatrists, as practitioners
of a "soft" clinical discipline, feeling uncertain and vulnerable.
Psychiatrists who explicitly employ perceptions of their own and/or the
patient's feelings in making crucial clinical decisions may feel an emotional,
ethical, and legal burden descending. Silently or aloud, they may repeatedly
ask themselves, "Is this really evidence that will stand up in court?
Do we have enough evidence to commit (or discharge) this patient?"
The psychiatrist's concern with malpractice liability commonly acts as
a lightning rod for these emotional and intellectual uncertainties. This
preoccupation with what the law does and does not permit can be a form
of clinical counter-transference [4,5].
It may, for example, be a projection of the clinician's superego, a means
of removing from consideration those clinically valuable subjective responses
to the patient (e.g., hate) that the clinician finds unbearable. In a
high-risk procedure such as suicide assessment, a myth of an "exact" science
grounded in objective verification [6] can be all too
readily joined to a fantasy about malpractice law to produce repression
or avoidance of valuable clinical data only because they are "subjective." This
approach results in practices known as defensive medicine [7].
In fact, contrary to the fears of many psychiatrists, recent psychiatric
malpractice case law has taken a realistic view of the uncertainties
inherent in clinical science. [*] The subjective
considerations which clinicians must take into account in any clinical
assessment, particularly that of suicide risk, not only are sanctioned
by contemporary scientific principles [6]; they also
are validated by all three standards of negligence invoked by the courts
in the determination of malpractice. Moreover, careful use of subjective
data in meeting the informed consent requirement offers further protection
against malpractice liability.
The Fantasy of an Objective Standard
Psychiatrists concerned about the extent of their liability for failing
to protect suicidal patients from foreseeable self-inflicted harm have
taken little comfort from Halleck's conclusion, derived in part from
standard sources such as Perr [8,9],
that "In some instances a psychiatrist certainly is liable [for
failure to anticipate and take reasonable steps to prevent suicide],
but the standards of care in this area are so vague, and court decisions
so unpredictable, that it is difficult to offer the practitioner any
absolute guidance as to how to avoid liability" [10].
Psychiatrists who look to medical malpractice law for relevant trends
may imagine themselves being subjected to something approximating this
actual courtroom interrogation of a nonpsychiatric physician:
Q. Can the patient control the extent to which he is prepared
and willing to move his neck, whether in response to your request or
in response to pressure from you?
MD. Yes, to a degree.
Q. Then it is not truly an objective test?
MD. No.
Q. What is cineradiography as applied to the range of motion of the neck?
MD. It is a method to determine the mobility of individual vertebral
bodies in different neck positions.
* * *
Q. And is this an objective test that cannot be feigned?
MD. Yes.
Q. And did you perform this procedure?
MD. No.
Q. Then the only clinical finding that you made at the time of your examination
on the first day that you examined him was a decreased range of motion
of the neck, and this was not established by objective means; is that
correct?
* * *
Q. Is there a significance (sic) between an "objective" finding
or sign and a "subjective" finding?
MD. Yes, sir.
Q. And an "objective" finding is something that you can see
with your own eyes or feel with your own hands on examination, as opposed
to the "subjective," which is something that the patient volunteers
to you and you have no way objectively of determining whether it does
or does not exist?
MD. Yes, sir. [11]
Here the attorney hammers away at an "objective"/"subjective" distinction
which, as we will later show, reflects an oversimplified and outmoded
conception of science. Nonetheless, as part of a movement to have psychiatry
return to a medical model [12-14], psychiatrists are
being urged to conform to the standards of "hard" science by
objectifying their findings. For example, psychiatrists serving as expert
witnesses in legal proceedings have been advised to replace "opinion
evidence" with "factual evidence" and to model their assessments
of psychiatric impairment after the precise numerical estimates made
by other medical specialists (e.g., "50% impairment"). Such "objective
assessment," it is claimed, will raise the standing of psychiatry
in the eyes of the law [15].
Such demands create a dilemma for the practicing clinician, taught both
by theory and by experience that the assessment of suicide risk requires
consideration of subjective factors. The psychodynamically trained therapist
knows that, while it is theoretically possible (and sometimes useful)
to quantify subjective judgments [16], subjectivity
is not thereby eliminated. Both a patient's report of a feeling and the
clinician's reaction have an irreducibly subjective component. No one
has seriously proposed that the risk of a patient's committing suicide
can be assessed without reference to such data. Even so, psychiatrists
understandably fall prey to the fantasy that the law insists on a more
purely objective approach. But it is hardly believable - and is not in
fact the case -that the courts would reject out of hand what common sense,
theory, and experience all attest to be essential to good clinical work.
Recent court decisions to be discussed here (especially those handed down
since Halleck's pessimistic summary was written) enable us to see in
clearer outline the evolution of negligence law as it concerns suicide
assessment. In sketching this outline we may awaken the clinician, as
it were, from the nightmare of imminent, omnipresent liability represented
by the courtroom interrogation quoted above. For the concerns of the
law are to safeguard the patient's right to due care by discriminating
negligent from nonnegligent practice, and to safeguard the patient's
right to due process by requiring that informed consent be obtained.
In carrying out these mandates the courts have recognized that good psychiatric
practice requires thorough consideration of all relevant data. Recent
case law sanctions the use of subjective data in the assessment of both
the risks of suicidality and the countervailing therapeutic benefits
of less restrictive options.
Three Standards of Negligence
The standards of due care against which a psychiatrist's treatment of
a suicidal patient is measured may be specified by appealing to one or
more of the three major traditions of negligence law: community standards
(professional custom); maximization of benefits relative to costs (Learned
Hand rule); and the notion of a "reasonable and prudent practitioner." With
each of these traditions we will show what the legal standard is and
how its application in recent malpractice cases allows for a sound assessment
of suicide risk combining subjective with objective factors.
Community Standards
The oldest tradition of negligence law, that of "community standards," holds
that one has exercised due care if one has done what others in the relevant
professional community would do in similar circumstances [17].
Originally the standards of care upheld by the law were those maintained
by physicians in the same local community. As regional differences broke
down, the range of reference was expanded to include "the same or
similar communities" [18] and finally, in the
case of nationally certified medical specialties, a nationwide community
of practitioners [19].
The community standards rubric, either by itself or in conjunction with
other legal standards, appears frequently in court decisions in malpractice
cases based on suicide. In a number of cases the plaintiffs have used
the wisdom of hindsight to charge a psychiatrist with malpractice, reasoning
naively that a bad outcome itself signifies negligence. The courts, however,
have turned aside this facile reasoning. In a case in which a patient
who jumped out of a hospital window sued the psychiatrist who had transferred
her to a more open, less secure ward, the court rejected her argument
from hindsight on the grounds that the psychiatrist had followed procedures
recognized as acceptable by the profession [20]. In
a case involving the suicide of a patient who had previously been homicidal
rather than suicidal, the court held that the plaintiff's expert witness
had failed to establish a generally accepted medical standard (as opposed
to personal opinion) to the effect that a patient showing homicidal tendencies
should also be automatically regarded as at risk for suicide [21].
The notion of community standards has also been invoked in cases where
the courts have refused to uphold the judgment of the treating psychiatrist.
One psychiatrist was found liable for the suicide of a patient whom the
psychiatrist had placed in a room with an openable window despite a previous
suicide attempt. Regardless of fault this psychiatrist, by neglecting
to introduce expert testimony in support of his contention that the patient
was not at the time a serious suicide risk, failed to avail himself of
a community standards defense [22].
Professional custom is not the last word in negligence law. On the one
hand, it can be too tolerant of the established and conservative practices
of a profession even when clearly superior alternative courses of action
exist. On the other hand, it can be too intolerant of respectable minority
positions within the profession. If taken too literally, it can lead
the clinician to overly conformist decision making (and loss of individualization
of treatment planning) when a consensus seems clear; and to a loss of
moorings when it does not. Yet professional custom is still an important
component of a good clinical assessment as well as a strong legal defense.
As such, the "community standards" criterion is very supportive
of the use of subjective data, since clinicians report that they do regularly
consider subjective data in the assessment of suicide risk [7].
Maximization of Benefits Relative to Costs
To supplement the notion of accepted community standards of professional
practice, another legal standard was needed that would more directly
reflect what was best for the patient. The standard that came into being
was the Learned Hand rule, first enunciated in 1947 [23].
Briefly stated, the rule holds that "negligent behavior is the failure
to invest resources up to a level that [is commensurate with] the anticipated
saving in damages" [24].
The Learned Hand rule was applied to medical malpractice in the controversial
Helling v. Carey decision of 1974 [25]. In Helling
v. Carey an ophthalmologist was held liable for the impairment of vision
suffered by a young woman to whom (following the customary practice of
his fellow specialists) he failed to administer a tonometry test for
glaucoma over a nine-year course of treatment. The court emulated the
Learned Hand approach by employing a series of mathematical calculations
to reach the conclusion that the benefits of tonometry testing exceeded
the costs. A perhaps unnoticed aspect of the case is the fact that, in
practice, a mathematical procedure like the Hand rule for comparing the
costs and benefits of alternate courses of action would tend to favor
the more objective data, only because the latter are more amenable to
numerical expression [26]. Although the cost-benefit
rule makes sense in principle, this bias raises the grim specter of the
courtroom vignette quoted earlier, where the cross-examining attorney
kept the medical expert witness squirming on the pin of an illusory objectivity.
At first sight, then, the Learned Hand rule, by its focus on concrete
costs, seems to be the standard least hospitable to subjective data.
However, the overly rigorous contemporary insistence on objective diagnostic
testing (ostensibly inspired by the mathematical cost-benefit approach)
does not itself stand up under cost-benefit analysis. Defensive medicine
- i.e., unnecessary testing or treatment for the sake of legal protection
- has been shown to be clinically and economically disadvantageous in
areas ranging from routine skull x-rays for head trauma [27]
to routine electronic fetal monitoring [28]. In psychiatry,
clinical experience tells us that this is even more obviously true for
suicide assessment, where objective data such as blood or cerebrospinal
fluid neurotransmitter levels [29,30]
have little meaning outside the context of a subjective understanding
of the patient, given the low frequency of suicide attempts in a general
psychiatric population [31]. Using subjective data,
then, is defensible on grounds of effectiveness, not simply because it
is what psychiatrists do.
The courts have resolved this dilemma in psychiatric malpractice cases
by keeping the principle of cost-benefit analysis as a framework for
decision making, but not demanding that the analysis be laid out with
mathematical precision - which, in the case of suicide assessment, is
plainly impossible. While rejecting the panacea of tidy numerical solutions,
the courts have also rejected the one-sided, "common sense" view
(mistakenly held by some families of suicide victims) that the psychiatrist's
duty is to prevent suicide at any price. In the first place, the courts
recognize that no amount of precautions can give absolute assurance that
a patient will not commit suicide [32]. Further, the
decision to hospitalize a patient (by suggesting voluntary admission
or by petitioning for commitment), to place a patient under closer observation
and restraint in the hospital, or to discharge a patient from the hospital
is a complex one, requiring the psychiatrist to balance a host of possible
costs and benefits [7].
For the individual patient, the possible benefits of close monitoring
and increased protective control must be weighed against the risks of
regressive loss of ego-strength, stigma, reduced capacity to function
autonomously, decreased liberty with compromise of some rights, and recurrent
suicidality. The therapist who reduces restraints on a patient is taking
a calculated risk of a suicide attempt, in return for therapeutic benefits
that increase the likelihood of the patient's returning to normal life.
As a matter of social policy, the practice of "defensive psychiatry" in
an all-out effort to prevent suicide would impede and frustrate the recovery
and rehabilitation of a large number of patients [33],
and would as well profoundly decrease their constitutionally based freedoms.
These considerations are summed up in a Florida decision disallowing
a malpractice claim in the case of a paranoid schizophrenic patient who
committed homicide and suicide shortly after being discharged from the
hospital:
Modern psychiatry has recognized the importance of making every
effort to return a patient to an active and productive life. Thus the
patient is encouraged to develop his self-confidence by adjusting to
the demands of everyday existence. Particularly because the prediction
of danger is difficult, undue reliance on hospitalization might lead
to prolonged incarceration of potentially useful members of society [34].
The courts have shown considerable deference to the judgment of psychiatrists
in the delicate balancing of risks against benefits [35-37].
In reversing a jury's finding of malpractice against a psychiatrist who
ordered a suicidal patient observed at 15-minute intervals rather than
continuously, the New York Court of Appeals used cost-benefit language
to reject the argument from hindsight put forth by the patient's widow:
[The patient's] reaction to constant surveillance, the possibility
that his heart condition would be aggravated by continuing such surveillance,
the gesture-like nature of his prior suicidal inclinations, the rehabilitative
aspects of "open-ward" treatment and the enhanced possibility
of obtaining [the patient's] consent to electroshock therapy in the more
relaxed open-ward atmosphere were all factors which defendant doctor
could properly consider in reaching the judgment whether, on balance,
the prescribed program was worth the risk involved [38].
To avoid liability the psychiatrist does not have to be proved "right" by
the outcome. But psychiatrists have been found liable for defective clinical
reasoning, e.g., for failing to recognize the risk of suicide [39]
and for underestimating the seriousness of the risk and with it the precautions
needed to counter it [40,41].
The precision with which the courts are prepared to enter into cost-benefit
reasoning is exemplified by a 1981 case concerning a patient who had
been maintained on tricyclics and neuroleptics in a New York state hospital,
where he was also seen by a private therapist. A hospital physician,
deciding that the patient had a neurotic depression, discontinued the
neuroleptics. The patient then went into a suicidal depression. Notified
of this development by the private therapist, the hospital physician
increased the dosage of tricyclics, at which point the patient became
psychotic. This, too, was communicated by the private therapist to the
hospital physician, who did nothing about it. A day later the patient
injured himself by jumping from a second-story hospital window. The patient's
family sued for negligence. The court held as follows: first, that the
hospital psychiatrist had not been negligent in discontinuing antipsychotic
medications, since this was an area where therapeutic approaches could
legitimately differ; second, that the hospital psychiatrist's failure
to take suicide precautions after the patient became suicidally depressed,
while an error in professional judgment, did not constitute malpractice;
third, that this psychiatrist had been negligent in her failure to take
action after having been notified that the patient was psychotic [42].
Despite the finding of negligence the psychiatrist escaped liability,
since the patient's precipitous departure was judged to have been an
escape (rather than suicide) attempt and therefore not necessarily preventable
by suicide precautions. What is of interest for our purposes, however,
is that the judgment of negligence was made on the basis of a cost-benefit
analysis in which the balance shifted when the patient was revealed to
be psychotic. In the absence of this diagnosis the court accepted the
reasonableness (if not the accuracy) of the psychiatrist's conclusion
that the benefits of a less restrictive therapeutic approach outweighed
the risks.
Popular perceptions aside, the courts do not impose on the psychiatrist
a legally defensive posture that could have detrimental consequences
for patients. Rather, legal as well as clinical considerations dictate
a judicious assessment of costs and benefits. Included in this assessment
are subjective factors, ones that are difficult to quantify. What the
law demands, then, is not mathematical precision, but the seasoned (though
imperfect) judgment, developed through clinical training and experience,
which weighs both risks and benefits of any clinical intervention.
The "Reasonable and Prudent Practitioner"
The third tradition in negligence law holds that one has exercised due
care if one has done what a reasonable and prudent person would do in
similar circumstances [43]. In a profession such as
psychiatry, the standard of care is that set by a reasonable and prudent
practitioner of the same discipline [33]. In yet another
refutation of judgment by hindsight, the courts have decided malpractice
cases involving suicide, not by the mere fact of the tragic outcome,
but on the basis of two related questions: Could the psychiatrist "reasonably" have
been expected to foresee the likelihood of a suicide attempt or to take
greater precautions to prevent it? Or could the psychiatrist "reasonably" have
concluded that the risk of suicide was outweighed by the benefits of
less restrictive therapy [21,22,34,35,44,45]?
Words such as "reasonably" appear in the courts' articulation
of the risk-benefit criterion. In this context they signify a standard
by which the courts evaluate the adequacy of the clinician's assessment
of benefits and risks. Where does that standard come from? That is, what
does it mean to say that a psychiatrist "could reasonably have concluded
. . ."? The most compelling answer to these questions appears to
lie in the scientific foundation of medical (and therefore psychiatric)
practice. The evolution from local to national community standards, the
mathematical precision of the Learned Hand rule, and the very wording
of "reasonable and prudent" as applied to a practitioner of
an applied scientific discipline all point to science as a source of
standards for nonnegligent practice. One recent commentary, for instance,
defines the standard of due care in medicine in terms of "the average
skill exercised by members of the same profession practicing in the same
locality in the light of the present state of scientific knowledge" [46].
As far back as 1930, however, Judge Jerome Frank observed that the law's
perception of "the present state of scientific knowledge" might
be in need of revision:
Even science is, for many, a new source of illusion, a new escape
from change and chance, a new road to the absolute. For, unfortunately,
too many persons, science is a charter of certainty, a technique
which ere long will give man complete control and sovereignty over
nature. Science seems to hold out an expectation that ultimately
man will gain total relief from uncertainty and procure elimination
of chance.
Of course that is an unscientific conception of science. Science
thus falsely conceived becomes, in effect, another father-substitute,
a guarantor of that absolute certainty which the child craves and
which the fully adult man recognizes as infantile [47].
Judge Frank's vision of a science that includes uncertainty has been given
a historical dimension in a recent reinterpretation of the scientific
principles underlying medical practice [6]. From the
demonstration that medicine must follow other disciplines in transforming
itself from a science of certainty ("mechanistic paradigm")
to a science of probability ("probabilistic paradigm"), clinical
guidelines emerge for working within the new paradigm.
In psychiatry, the essential elements of a clinically sound suicide assessment
correspond to the three criteria for scientific investigation which define
this paradigm. First, there is an awareness of the intermingling of multiple
causes together with chance in the etiology of suicide, as evoked by
Havens' description of suicide as "the final common pathway of diverse
circumstances, of an interdependent network rather than an isolated cause,
a knot of circumstances tightening around a single time and place. .
. ." [48] This view is consistent with the first
criterion of the probabilistic paradigm, which sees causation as multiple,
changing, and not fully certain.
Second, there is the building of a supportive therapeutic alliance and
the monitoring of its impact on the patient. The patient is not seen
in isolation, unaffected by the therapist's observation. Rather, the
ongoing interchange between patient and therapist is recognized to influence
the patient's state of being in more ways (for good and for ill) than
can be accounted for by any planned intervention. This approach is reflected
in the second criterion of the paradigm, according to which scientific
investigation consists not of conclusive experiments, but of an ongoing
process of action, observation, and interpretation. Side effects of observation
on what is observed, such as the alienation of the patient from the therapist
or, conversely, the building of a closer alliance during the suicide
assessment [49], are viewed as a legitimate and significant
subject for scientific inquiry.
Seen in this light, the creation of a therapeutic alliance and the careful
observation and interpretation of the subjective data that emerge from
the alliance are essential to the scientific procedure of clinical data
gathering. The third criterion of the probabilistic paradigm reminds
us that no information is completely objective or completely subjective.
The two kinds of data exist on a continuum, with objective data having
a subjective component and vice versa. This third criterion, in conjunction
with the first two, thereby offers a therapeutic, scientific, and — ultimately — legal
rationale for the critical use of subjective data in suicide assessment.
Historically, then, mechanistic science viewed subjective data as only
a first approximation of unequivocal truths to be revealed subsequently
by more objective data. Psychiatry, as a twentieth-century probabilistic
science, is more attuned to the value of subjective data as a true representation
of the uncertainties of human experience and interaction [50].
Although a modern science of probability might appear to be in conflict
with the absolutism of the law, the law itself acknowledges degrees of
uncertainty, as illustrated by the three standards of legal proof: "preponderance
of evidence" (understood as 51 percent certainty), "clear and
convincing evidence" (75 percent certainty), and "beyond a
reasonable doubt" (90 or 95 percent certainty) [51].
In malpractice cases involving suicide, the courts have recognized that
the prediction of suicidality in a particular patient is fraught with
uncertainty [21,35]. A recent Florida
decision, for example, stated that "accurate predictions of dangerous
behavior, and particularly of suicide and homicide, are almost never
possible" [34]. Another court noted that "...
physicians and other professionals practice the arts and must be allowed
a wide area of discretion" [20]. While some might
argue that the traditional art/science distinction in medicine does not
provide a sound basis for legal judgment, the informed clinician may
conclude that the "art" is subsumed by probabilistic medical
science [6]. Although judges and juries cannot be expected
to have a prior familiarity with the philosophy of science, the clinician
who documents probabilistic thinking in the interpretation of subjective
data has a formidable defense (that of reasonableness and prudence) against
the charge of negligence.
Informed Consent, Proximate Cause and the Competent Assumption of Risk
Informed consent is another legal requirement [52] which
the clinician may experience as burdensome. Yet there are several ways
in which informed consent can prove to be a crucial ingredient in malpractice
prevention. Most straightforwardly, the attempt to obtain informed consent
(when documented) constitutes evidence that the clinician has met the
requirements of the Learned Hand rule by considering the costs and benefits
of alternative treatments with the patient. However, the significance
of informed consent with respect to malpractice liability extends beyond
the question of negligence.
Negligence is only one of the four elements necessary to establish liability
for malpractice; the others are duty to care, harm, and causation. Not
only must the patient suffer physical or emotional harm, but the injury
or death must follow so directly from the therapist's negligence that
the latter can be said to constitute a "proximate cause" [7].
On this principle one psychiatrist was held not liable for a suicide
in part because the suicide took place several weeks after the psychiatrist
had allowed the patient to leave the hospital. (The psychiatrist had
judged the patient in need of treatment, but not sufficiently dangerous
to himself or others to be committable.) The court held that the passage
of time had brought with it so many possible intervening causes as to
make it impossible to establish a clear causal link between the decision
to release and the suicide [44].
The patient's own actions themselves may constitute an independent intervening
cause. A patient who sued her psychiatrist for allowing her the freedom
to attempt suicide was held to be contributorily negligent because she
failed to reveal information which might have enabled the psychiatrist
to make a better judgment [20]. Here again the crucial
importance of the informed consent procedure, in which the patient is
encouraged to provide any information relevant to subsequent clinical
decisions, is apparent.
The deeper significance of informed consent for malpractice law lies,
however, in a growing legal recognition of the relationship between patient
competence and proximate cause of death by suicide. Note that we are
here proposing a conceptualization that probably will be — but,
so far as we are aware, has not yet been — elaborated in specific
cases by explicit legal decisions. It may, however, be implicit in the
1981 decision of a divided New York court that held the state not liable
for the injuries suffered by a voluntary patient who threw himself in
front of a moving vehicle after escaping from a mental hospital. An involuntary
patient, the court noted, by having required greater safeguards, would
have been entitled to damages under the same circumstances. The dissenting
judges did not challenge this reasoning; rather, they were of the opinion
that the hospital had been negligent in keeping the patient on voluntary
status in the face of available information militating for commitment
[53]. Underlying the court's reasoning may have been
the assumption that involuntary (and, by implication, incompetent) patients
are suspect in their ability to participate in a meaningful informed
consent process. Therefore, the burden is on the clinician to foresee
more dangers.
It has been further argued that even a psychiatrist who is found negligent
should be relieved of liability on the grounds that suicide, when it
can be said to be a voluntary act, constitutes an intervening independent
cause. Perhaps reflecting the epistemological complexity of the issue,
two decisions rendered in 1981 came down on opposite sides of this question.
The traditional view was upheld in a Pennsylvania ruling that a hospital
could be held liable for damages resulting from a patient's having set
fire to his room. Rejecting the hospital's claim that the act of setting
the fire was an intervening cause, the court declared such an act to
represent the very kind of harm against which the hospital had a duty
to guard [54]. In contrast, a Texas decision reflected
an emerging view that an intentional suicide is itself the proximate
cause of death. In the case of a patient who committed suicide unexpectedly,
without forewarning, by overdose of the antipsychotic drug Etrafon, the
court held that a Veterans Administration psychiatrist was not negligent
in his treatment of the patient (which included prescription of this
drug), while the hospital pharmacy was negligent in dispensing excessive
quantities of the drug. In neither instance, however, was liability exacted.
The court held that since the patient's intentional (but unforewarned
of) overdose was not a foreseeable consequence of the pharmacy's negligence
(or of the psychiatrist's, even had he been negligent), the act itself
and not the prior negligence was the proximate cause of the harm suffered
[55].
In both of these cases the question of proximate cause hinged upon the
foreseeability of the patient's destructive act as a consequence of the
alleged negligence on the part of treating personnel. Since the foreseeability
of a suicide attempt is also a factor (under all three legal traditions)
in determining negligence itself, there appears to be some overlap between
two of the necessary conditions for malpractice liability: negligence
and proximate cause. Thus, pending clarification of the law, two separate
legal determinations may hinge on the adequacy of the clinician's assessment
of the likelihood that a patient will attempt suicide.
Finally, for suicide to be truly intentional, i.e., for "intention" to
have legal meaning, we might argue that the patient must be competent.
Thus, when a tragic outcome is followed by a malpractice claim, the determination
of the patient's previous competence to give informed consent to the
treatment actually used may be, in retrospect, a moment of pivotal importance
in the clinical history. The therapist's assessment of the patient's
competence may, of course, be challenged; but the stronger the therapist's
documented grounds for finding the patient competent, and thus able to
act truly voluntarily, the more remote the prospect of malpractice liability
for suicide may be, since it is thus more likely that the patient's independent
and competent action is the proximate cause of the outcome.
Conclusion
Current trends in malpractice law pertaining to the subjective component
of suicide risk assessment reveal a reassuring congruence between clinical
and legal standards. Through an awareness of legal requirements in the
areas of both negligence and informed consent, subjective data can be
used along with objective data in a thorough consideration of all the
variables that contribute to a sound clinical assessment of suicidality.
Careful, documented interpretation of subjective as well as objective
data reduces malpractice liability by whatever standards are invoked
to determine negligence. Similarly, informed consent not only is good
medical practice and a requirement of the law, but also is useful in
minimizing the risk of a malpractice judgment. Its value for this purpose
can be expected to increase as the courts come to recognize the competent
patient's assumption of risk as an intervening independent cause of suicide.
For the practicing psychiatrist, consultation and documentation still
comprise the two pillars of malpractice prevention [7].
Psychiatrists who face the uncertainties of suicide assessment should
not only observe due care of the patient, care that might be judged by
the three standards discussed above; they should also consult with colleagues
about difficult decisions (itself evidence of attention to community
standards) and document the clinical reasoning used. Any decision representing
an apparent deviation from one or more of the standards described above
or failure to obtain informed consent due to the patient's incompetence
should also be documented. With such documentation the psychiatrist may
find reassurance in a troubling area.
* This conclusion is supported by a review
of recent case law prepared by Onek, Klein and Fare, Washington D.C.,
which was consulted in the preparation of this paper.
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