During the past decade, malpractice claims against psychiatrists have steadily increased. Suicide attempts produce the largest number of psychiatric malpractice claims and comprise the largest percentage of dollars paid out to settle such claims.¹ Although a psychiatrist is neither an insurer nor required to prevent suicide, "he is not necessarily freed from civil liability simply because the suicide or the attempt thereat was an intentional act by his patient."²

Reasonably Prudent Psychiatrist

In most jurisdictions, a psychiatrist is required to exercise that degree of care and skill that a reasonably prudent psychiatrist would exercise in treating mental conditions possibly leading to suicide. The duty of care owed by a psychiatrist to his patients is shaped by the plaintiff's medical condition.³ "The controlling factors in determining whether there may be a recovery for failure to prevent a suicide is whether the defendant reasonably should have anticipated the danger that the deceased would attempt to harm himself."⁴ In short, the duty of care to prevent self-inflicted harm arises where there is a foreseeable risk that the patient's condition, as it is known to the defendant, includes the danger that he would injure himself.⁵

Professional Judgment Rule

Striving to find a more objective method of liability in cases of psychiatric malpractice, New York has adopted the "professional judgment rule". A difference of opinion among physicians is not sufficient to establish a prima facie case of malpractice.⁶ Liability may not attach unless it is shown that the decision to release a psychiatric patient was "something less than a professional medical determination."⁷ The protective cloak of the doctrine of professional medical judgment extends to psychiatrists who do what they think is best after careful examination of their patients.⁸ It is this careful examination which provides the justification for the professional medical judgment rule.⁹ The cornerstone of this doctrine is the process of the patient's evaluation. Ultimately, what is important is how a psychiatrist arrives at his determination, not the decision in and of itself.¹⁰

Control Is A Key Element

Courts have struggled to determine under what circumstances liability of a psychiatrist for a patient's decision to end his own life is appropriate. The cases demonstrate a clear trend that the element of control is critical in determining the extent a psychiatrist's liability to his patient.¹¹ Accordingly, many jurisdictions have imposed liability for suicide attempts where a patient has surrendered himself to the custody and care of a psychiatric hospital or mental institution as an inpatient. Conversely, courts are much more hesitant to impose liability upon a psychiatrist for a suicide attempt on an outpatient basis.¹²

In several cases, liability has been predicated upon an institution's failure to take protective measures to prevent the inpatient from attempting suicide.¹³ Where an inpatient's suicidal tendencies are known and the risk of harm can be identified through the exercise of professional medical judgment, the failure to take measures to prevent the harm may constitute malpractice.¹⁴ This duty is based on the patient's confinement and the hospital's ability to supervise, monitor and restrain the patient.

The above must be distinguished from a psychiatrist's duty to diagnose and treat his patient on an outpatient basis. Generally speaking, where a suicide attempt occurs on an outpatient basis, outside of the presence of a psychiatrist's care, it is often difficult for the plaintiff to prove both a departure, and more often, proximate cause. Verdicts have been overturned for a failure to make out a prima facie case.¹⁵ Even where departure has been shown, it is often the case that a plaintiff cannot present sufficient evidence to show that the failure to monitor and supervise was the proximate cause of death. It is often difficult to establish a causal relationship because some patients will either fail to exhibit any suicidal tendencies or disclaim their desire to take their own life when questioned by their analyst.

Contributory Negligence

Issues of contributory negligence are often raised, however unsuccessfully, by the defense bar. An excellent multijurisdictional discussion of this area can be found in Cowan v. Doering, 111 N.J. 451, 545 A.2d 159 (N.J. 1988). Many jurisdictions refuse to even permit the raising of contributory or comparative negligence of plaintiffs in suicide cases.¹⁶ In general, the rationale prohibiting the use of contributory negligence as a defense is based on the fact that the alleged negligence of the plaintiff, the self-destructive or suicidal behavior, is precisely the injury that the defendant was under a duty to prevent.¹⁷

Involuntary Commitment Presents Hard Policy Considerations

Another area of debate is the scope of a psychiatrist's legal duty to involuntarily take a person into custody and compel hospitalization where he presents a threat of serious harm to himself, yet the person has refused care. Although in several jurisdictions, a psychiatrist is permitted by statute to hospitalize a person involuntarily if he is likely to harm himself seriously by reason of mental illness,¹⁸ these authors have found no court that has held a doctor liable for failing to take his patient into custody where the patient has rejected the advice that he be hospitalized.¹⁹

Although such a duty may exist, one jurisdiction has expressly refused to impose such a legal duty on a psychiatrist where the patient was already in the custody of her parents, who had refused advice for hospitalization, concluding that such a duty "would create an intolerable burden on psychiatrists and the practice of psychiatry."¹⁹ Moreover, involuntary commitment raises issues of false imprisonment and negligent confinement.²⁰ If faced with this burdensome responsibility, the psychiatric profession, fearing claims of malpractice, will undoubtedly detain more patients than necessary. As such, the probability and undesirability of increased claims of false imprisonment must not be overlooked when contemplating the imposition of the legal duty of involuntary hospitalization.²¹ As the case law stands, claims of false imprisonment, when asserted by patients, are generally not successful.²² Most often, a psychiatrist's determination to involuntarily commit a patient is warranted and can be justified pursuant to statute.

1. See Blinder, M.D. (1993). Psychiatry in the Everyday Practice Of Law, Section 13.1, (3rd ed.). Illinois: Clark Boardman Callaghan.
2. Farrow v. Health Services Corporation, 604 P.2d 474, 477 (Utah 1979).
3. Cowan v. Doering, 111 N.J. 451, 545 A.2d 159, 164 (N.J. 1988); Pisel v. Stamford Hospital, 180 Conn. 314, 430 A.2d 1 (1980).
4. Id. See also, Annotation, Civil Liability for Death by Suicide, 11 A.L.R.2d 751, 782-92 (1950).
5. Id.
6. See Scialdone v. State of New York, 197 A.D.2d 568, 602 N.Y.S.2d 638 (2nd Dept. 1993); Krapivka v. Maimonides Medical Center, 119 A.D.2d 801, 501 N.Y.S.2d 429 (2nd Dept. 1986); Wilson v. State, 112 A.D.2d 366 (2nd Dept. 1985). Bell v. New York Health and Hospitals Corp., 90 A.D.2d 270 (2nd Dept. 1982).
7. Bell v. New York City Health & Hospitals Corp., 90 A.D.2d 270 (2nd Dept. 1982).
8. See Vera v. Beth Israel Medical Hospital, ___ A.D.2d ___, 625 N.Y.S.2d 499 (1st Dept. 1995); Haynesworth v. New York City Health & Hospitals Corp., 195 A.D.2d 424 (1st Dept. 1993); Bell v. New York City Health & Hospitals Corp., 90 A.D.2d 270 (2nd Dept. 1982).
9. See Cohen v. State, 51 A.D.2d 494 (3rd Dept. 1976).
10. See Vera v. Beth Israel Medical Hospital, ___ A.D.2d ___, 625 N.Y.S.2d 499 (1st Dept. 1995)
11. See Bramlette v. Charter Medical Columbia, 393 S.E.2d 914 (S.C. 1990); Kerker v. Hurwitz, 163 A.D.2d 859, 558 N.Y.S.2d 388 (N.Y.A.D., 4th Dept. 1990); Cowan v. Doering, M.D., 111 N.J. 451, 545 A.2d 159 (1988); Pisel v. Stamford Hospital, 180 Conn 314, 430 A.2d 1 (1980); Farrow v. Health Services Corp., 604 P.2d 474 (Utah 1979).
12. See Scheidt v. Denney, M.D., 644 So.2d 813 (La.App. 1 Cir. 1994); Haynesworth v. New York City Health And Hospitals Corp., 195 A.D.2d 424, 600 N.Y.S.2d 711 (N.Y.A.D. 1st Dept. 1993); Gaido v. Weiser, 115 N.J. 310, 558 A.2d 845 (N.J. 1989); Vinchiarello v. Kathuria, 18 Conn.App. 377, 558 A.2d 262 (1989).
13. See Bramlette v. Charter Medical Columbia, 393 S.E.2d 914 (S.C. 1990); Kerker v. Hurwitz, 163 A.D.2d 859, 558 N.Y.S.2d 388 (N.Y.A.D., 4th Dept. 1990); Cowan v. Doering, M.D., 111 N.J. 451, 545 A.2d 159 (1988); Pisel v. Stamford Hospital, 180 Conn 314, 430 A.2d 1 (1980); Farrow v. Health Services Corp., 604 P.2d 474 (Utah 1979).
14. See Kerker v. Hurwitz, M.D.,163 A.D.2d 859, 558 N.Y.S.2d 388 (N.Y.A.D., 4th Dept. 1990).
15. See Paddock v. Chacko, 522 So.2d 410 (Fla.App. 1988); Krapivka v. Maimonides Medical Center, 119 A.D.2d 801, 501 N.Y.S.2d 429 (N.Y.A.D., 2nd Dept. 1986); Nieves v. City of New York, 91 A.D.2d 938, 458 N.Y.S.2d 548 (N.Y.A.D., 1st Dept. 1983).
16. See Peoples Bank of Bloomington v. Damera, 220 Ill.App.3d 1031, 581 N.E.2d 426 (Ill.App. 1991).
17. See Bramlette v. Charter-Medical-Columbia, 393 S.E.2d 914 (S.C. 1990); Gaido v. Weiser, 558 A.2d 845 (N.J. 1989); see also Annotation Civil Liability For Death By Suicide, 11 A.L.R.2d 751, 782-792 (1950). In light of the foregoing, the following is noteworthy, The critical distinction between this case and all other medical malpractice cases is that here the patient does not share the goal of his physician of getting better; while the doctor is working to assist the patient to suppress suicidal tendencies, the patient, by the nature of his illness, may be working at cross-purposes to his doctor's suggestions and may not be interested in following instructions.... We hold that in a suicide malpractice case against the decedent's psychiatrist, the comparative fault of the decedent is not likely ever to be an appropriate or relevant issue, and here it was not. Peoples Bank of Bloomington v. Damera, 581 N.E.2d 426, 429 (Ill.App. 1991).
18. See e.g., M.G.L. c. 123 § 12 (Mass.); Fla. Stat., Florida's Baker Act, § 394.463; OCGA § 37-3-41 (Georgia); Ark.Stat.Ann. § 59-408(B) and (C).
19. Compare this with the duty to involuntarily commit where the patient presents an unreasonable risk of harm to a third party. A thoughtful and compelling analysis of this issue can be found in Currie v. United States. In Currie, the Fourth Circuit astutely recognized that "[a] duty to warn potential, identifiable victims of violence is not dependent upon a power of control of the conduct of the violent actor, but a duty to seek involuntary commitment necessarily treats the one subject to the duty as have the essence of the power of control." As such, the policy considerations are different in the two situations. Accordingly, the Court explained: Affirmative steps by a psychiatrist to procure the involuntary commitment of his patient necessarily will be disclosed to the patient with the great likelihood that the psychiatrist's potential for constructive influence over the patient will be destroyed, while a warning to third persons may well remain unknown to the patient or appear to the patient as not necessarily attributable to the physician. Initiation of involuntary commitment proceedings threatens the patient's constitutionally protected liberty interest, while warnings to third persons to take precautions does not.
20. Paddock v. Chacko, 522 So.2d 410, 415 (Fla.App. 5 Dist. 1988).
21. See Williams v. Smith, 179 Ga.App. 712, 348 S.E.2d 50 (1986); Turner v. Baptist Medical Center, 631 S.W.2d 275 (Ark. 1982).
22. Id.