Suicide is the 10th leading cause of death in the U.S. Eleven suicides are attempted for every successful one.
Typically the defense in a suicide case is lack of control. That is, the therapist lacked control over the patient in particular in an outpatient situation.
Suicide cases, by definition, are difficult in Virginia. Typically to recover, the decedent must have been of unsound mind when the act was committed. Wackwitz v. Roy, 244 Va. 60, 65-66 (1992) Typically the burden of establishing that defense would fall on the defendant. Reid v. Newton, 2014 U.S. Dist. LEXIS 52072 (2014)
However there are some Virginia circuits that require the plaintiff to establish that the decedent was of unsound mind. Saunders v. Leesburg Inst., 30 Va. Cir. 113 (1993); Joyce v. Center for Brief Counseling, Inc., 27 Va. Cir. 209, 211 (1992)
Suicide Medical Malpractice-Special Relationship
The factual predicates that need to be laid are based upon the assessment conducted by the therapist. The factors that typically are looked at are the following:
- History of attempts;
- Medical seriousness of the prior attempts;
- Acute ideation;
- Severe hopelessness;
- Attraction to death;
- Family history;
- Acute overuse of alcohol or drugs;
- Feelings of loss and separation. 30 Professional Psychology: Research and Practice 576 (1999)
Based upon that assessment, there may be a need for cautionary measures. Those cautionary measures may consist of several things:
- Medication;
- Constructing a treatment program;
- More frequent visits;
- Controlling access to weapons and drugs;
- Voluntary admission.
Case Law
There are a number of cases that deal with the doctor/hospital having a heightened duty of care to an inpatient psychiatric patient. Molchon v. Tyler, 262 Va. 175 (2001); Fox v. Custis, 236 Va. 69 (1988); Dudley v. Offender Aid Restoration; 241 Va. 270 (1991); Baumgardner v. Southwestern Virginia Mental Health Institute, 247 Va. 486 (1994).
Transference
Transference occurs when a patient unconsciously redirects feelings and behaviors towards the therapist that typically are tied to significant figures in the patient’s past. There are many different types of transference. Sometimes this transference can go both ways. It is important for the therapist to understand that this may be occurring and to make sure that boundaries are being set. A failure to do that may be malpractice.
The therapist needs to be on the lookout for any signs of transference. In addition the therapist needs to be sensitive to any sense of abandonment by the patient.
The Nature of the Claims
The claims that may be asserted against the therapist may be simple negligence i.e., malpractice. There may also however be a basis for an informed consent claim. In particular if the therapist is aware of transference occurring, has not set boundaries and further has not informed the patient of the risk of this transference, that may be a basis for an informed consent claim.
Insurance Coverage
Also as part of any such claim, it’s important to determine what type of insurance coverage the therapist has. If the therapist has a claims-made policy, that means that coverage begins when the claim is made. It does not necessarily begin at the time of the alleged misconduct. Therefore it may be important that when putting the therapist on notice of the claim, you also put the insurance carrier on notice of the claim.
Suicide Medical Malpractice-Best Practices
The types of treatment that seem to be best in dealing with suicidal patients are actual behavior therapy where steps are taken to modify behavior, problem-solving therapy where the patient is expressly taught how to deal with feelings of depression and suicide. In addition interpersonal psychotherapy that attempts to build a bond with the patient.
Causation
The most difficult element in any suicide case is establishing causation. The allegation that needs to be made is that the therapist either knew or should have known that the suicide was likely. In addition the therapist failed to take adequate preventive measures.
These are never simple cases. However they can be successful where there is improper assessment and improper treatment.
Call or contact us for a free consult. Also for more info on medical malpractice see the Wikipedia pages. Also see the post on this site dealing with malpractice issues.
