Editor's note: The following article is based on a speech given by Irwin Pen" at the Tenth Annual Symposium on Mental Health Law, held May 28-29, 1987, where a number of topics were presented related to professional liability.
I have pursued an interest in the subject of litigation related to suicide since 1960. (1) Since that time an immense literature on suicide has evolved, as has a great increase in litigation concerning suicide to the point where it probably now constitutes at least the second greatest number of lawsuits against psychiatrists. Over the years little has really changed in terms of suicidal behavior and responsibility from the clinical standpoint, but I have observed the American legal system, in an increasingly erratic manner, attempting to impose blame on professional persons when suicide occurs. Study of legal cases has been only of limited use if one is seeking principle, rationality, consistency, and application of accumulated knowledge for reasonable legal purposes. (2)
Judicial decisions have become increasingly bizarre as judges make diagnoses, order treatments, reject treatments, and discharge patients, as well as often manifest gross ignorance of the issues about which they make law, relying on lawyers and doctors who pose as experts--when in reality they are but persuaders, advocates, and propagandists with an economic or other agenda. The applicability of the jury system to evaluation of care also continues to be troublesome.
These are strong words but I feel that they are justified in discussing the current American trends in allowing lawsuits against psychiatrists and hospitals for the behavior of people with mental problems.
Traditionally malpractice conveyed certain specific elements; it implied that a professional person failed to adhere to a professional standard with direct injury to a person who relied on that professional person. Medical malpractice most often occurred in a hospital environment and frequently involved a surgical, or other, intervention wherein somebody did something wrong to the patient who was injured, such as a surgeon conducting the wrong procedure on a patient. The wrongful behavior is clear:, the surgeon is the actor and the injured party plays no role in being damaged, but is the passive recipient of someone else's behavior.
As time has gone on the legal profession has enriched itself by expanding the bases allowed for litigation. Thus patients may sue for something that was not done, from which an injury resulted. Now the claim is not based on an act, but on a nonact. A juror may be able to tell if an act has occurred, but not so easily a non-act. (Perhaps this is somewhat equivalent to asking a person to prove that he is not a communist.) Thus a patient (or the lawyer on behalf of the patient) will argue that the physician should have done various tests to make a certain diagnosis. Increasingly patients who develop cancer claim that the doctor failed to make a diagnosis, thus depriving the patient of a chance for life. Despite the fact that such diseases slowly evolve, and therefore, often are not easily diagnosable in early stages, jurors can identify with claimants as potential sufferers and support claims of malpractice. But even here where an act of omission is claimed, the patient plays no particular role in what occurs.
The management of psychiatric patients is different. Much mental illness involves socially disruptive behaviors by patients which result in injury to third parties. The law states that mental illness, while possibly excusing one from criminal responsibility, does not excuse one from civil liability for negligence and other tort actions. Unfortunately for claimants, many mentally ill people have little money or at least do not have the 'deep pockets' that so attract those who live off the tort system.
In recent years, stimulated by the infamous …