Academic journal article Defense Counsel Journal

The Bottom Line

Academic journal article Defense Counsel Journal

The Bottom Line

Article excerpt

Historically, in medical malpractice actions involving a suicidal patient, the mental health care providers have borne the lion's share of responsibility for protecting their patients against foreseeable harm, even where the patient has not been declared legally incapacitated or incompetent. The majority of jurisdictions expressly or implicitly have presumed that suicidal patients (1) have abdicated responsibility for their well-being to their health care professionals, and (2) as pointed out in Peoples Bank of Bloomington, are working against the health care professionals' plan of care.

It is difficult to predict how steadfast the various jurisdictions will be to the presumption that a patient exhibiting suicidal ideation is unable to act rationally and exercise ordinary care. As evidenced by the growing debate regarding physician-assisted suicide, society's revulsion against suicide is being replaced by deliberate considerations of personal control over one's life and quality of life issues. The term "suicidal" is no longer automatically synonymous with "insane."

Accordingly, when faced with defending a malpractice action involving a patient's suicide, counsel must consider multiple factors in asserting and presenting evidence in support of patient conduct defenses:

* Whether the patient's suicide evidenced a deliberate and premeditative process indicating a full appreciation and assumption of the consequences of his act;

* Whether the patient met any statutory criteria of incompetency or incapacity found in criminal legislation, mental health care regulations or health care consent/surrogacy statutes;

* Whether the jurisdiction has existing presumptions regarding patient capacity encompassed within statutorily mandated "patient's rights" statutes and regulations applicable to psychiatric hospitals;

* Whether the health care provider has documented and/or can articulate the patient's conduct and capacity and how that conduct and capacity prevented the health care provider from foreseeing the suicide attempt and implementing a more restrictive course of action under existing mental health law; and

* Whether the jurisdiction has legislated the duties of health care providers resulting in a per se rule that the patient cannot be contributorily at fault. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.