Strategies to Avoid a Malpractice Suit When a Patient Commits Suicide

A few simple steps can enhance your assessment of a patient’s suicide risk-and thereby reduce your own risk for liability if the patient does commit suicide. Phillip J. Resnick, MD, professor of psychiatry and director of forensic psychiatry at Case Western Reserve University in Cleveland, described those measures in a lecture today at the US Psychiatric Congress in Las Vegas.

Careful documentation of suicide risk factors-including prior attempts and feelings of hopelessness-is the most important means of avoiding a malpractice suit, according to Dr Resnick. It’s not enough to state simply that a patient denies having suicidal ideas. Also take into account input from family and objective signs of patient behavior before discharging a patient from the hospital.

Critical to a suicide risk assessment is systematic gathering of data about protective factors, said Dr Resnick. “One of the single most important protective factors is a sense of responsibility to family, particularly if the patient is a custodial parent who has children younger than 18 living with him or her.” Other protective factors include a positive support system, a therapeutic relationship, and good coping skills. Pregnancy is also considered a protective factor.

Inpatient Suicide
Liability risk rises when a psychiatric inpatient commits suicide. According to Dr Resnick, there are 2 major considerations in the eyes of the law when determining whether a psychiatrist has failed to protect a patient: foreseeability and precautions taken after the suicide risk is identified, such as frequent monitoring. Suicide is difficult to predict, and the law recognizes this. “However, once the psychiatrist is aware that a patient is at risk for suicide, he or she is expected to take certain reasonable precautions,” Resnick said.

Before discharging an inpatient, be sure to document objective signs of improvement, such as better appetite, better sleeping, group therapy attendance, and brighter affect. This information should be included in the clinical notes. “When I review a malpractice case involving a patient who killed himself or herself shortly after discharge, I look to see whether the doctor recorded any objective evidence of improvement,” said Resnick.

In such malpractice cases, the court must determine whether the psychiatrist made an error of fact or an error of judgment. An error of fact, such as failing to inquire about suicidality in a depressed patient, is distinct from an error of judgment, he said. “If a psychiatrist has gathered the relevant data, he may make an error of judgment-but it cannot be so egregious that no prudent psychiatrist would make a similar error.”

Common Errors in Suicide Risk Assessment
A number of errors increase the psychiatrist’s liability risk. The most common is overreliance on a patient’s statements rather than on his observable behavior. A psychiatrist may assume a therapeutic alliance with a patient; however, about 25% of patients do not admit suicidal ideation to their health care provider.² Once a patient makes up his mind to commit suicide, he may no longer view the doctor as an ally but as an adversary. Resnick said health care providers should not accept a disavowal of suicidal plans at face value-especially if the patient wants to leave the hospital.
No-suicide contracts may also create a false sense of security for the psychiatrist. “A no-suicide contract is alright as long as the psychiatrist doesn’t depend on it,” said Resnick. “I’ve seen nursing manuals that suggest that these no-suicide contracts can be used as a guide to determine whether the patient get privileges. I think that is just a mistake.”

Resnick also strongly recommends involving the patient’s family. “This is crucial,” he notes, “because a patient who is saying his final goodbye before killing himself has a 60% chance of saying goodbye to his spouse but only an 18% chance of notifying his therapist.³” If a patient or a family member reports that the patient has a suicide plan, increased scrutiny is critical: 3 of 4 of these patients go on to attempt suicide.⁴ Hospitalization or increased treatment should be considered.

References:

References

1. Resnick PJ. Suicide risk assessment and malpractice avoidance. Presented at: US Psychiatric Congress; November 2-5, 2009; Las Vegas.
2. Simon RI. Suicide risk assessment forms: form over substance? J Am Acad Psychiatry Law. 2009;37:290-293.
3. Robins E, Gassner S, Kayes J, et al. The communication of suicidal intent: a study of 134 cases of successful (completed) suicide. Am J Psychiatry. 1959;115:724-733.
4. Kessler RC, Borges G, Walters EE. Prevalence of and risk factors for lifetime suicide attempts in the National Comorbidity Survey. Arch Gen Psychiatry. 1999;56:617-626.