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Psychiatric Malpractice

When a psychiatrist's care falls below the standard of care, there can be serious consequences including death or severe brain injury.  These cases can be very difficult to prove in court, however, because a psychiatrist's mistakes do not show up on an x-ray and the "standard of care" is much more subjective.  Then, of course, there are all the difficulties inherent in medical malpractice cases.  One retired judge in an affluent county recently told me that in 30 years on the bench he never had one plaintiff's verdict in a medical malpractice case.  To add to that, in the case of a law suit related to a suicide or attempted suicide, you will have to deal with the commonly-held opinion held that "if a patient killed himself, it's his fault".  Holding a mentally ill patient responsible for his own death or self-inflicted injury after either he or his family managed to get him placed in the hospital to protect him from himself is, excuse the expression, "nuts". Mental illnesses such as major depression are, of course, much more complicated and psychiatrists are trained to recognize suicidal behaviors.  While suicide is largely unpredictable in the general population, it does reveal itself in important ways when known risk factors are present. When psychiatrists and hospitals, care providers who are in the business of protecting patients from harming themselves, ignore risk factors and place a loved-one on the lowest level of observation, disastrous consequences can result.  It is certainly cheaper to place a patient on 15 minute checks than assigning a nurse to provide one-to-one observation, but 15 minutes is more than enough time for the patient who has genuine suicidal intent to either kill himself or cause serious brain injury.  We have substantial experience in this difficult area.  We have consulted some of the foremost experts on the issue of suicide risk assessment and treatment.  We have had a great deal of success representing families of patients who either killed themselves in a hospital setting or suffered anoxic brain injury in an attempted suicide at the hospital.

Suicide Risk Factors and Treatment of Suicidal Patients
Posted by: Trey Pettlon
October 18, 2009

"As anyone who has been close to someone that has committed suicide knows, there is no other pain like that felt after the incident."  Peter Greene 

Most people do not have to deal with a loved-one who becomes suicidal.  It is a scary and difficult experience to love someone who is self-destructive and even more so if they have suicidal intent.  If a loved-one is suicidal and they are in the midst of a crisis, the first thing to do is to get them to the hospital.  Most people think that once they get them to the hospital, their loved-one is safe.  Unfortunately, in some cases, this is simply not true.  The truth is that, in some cases, your loved one may receive less attention at a particular hospital than he did at home.

If you ever have to take a loved one to the hospital it is critical that you make sure that admissions  and the nurse doing the risk assessment is aware of the patient's history.  You cannot rely on your loved-one to tell them everything that is important for them to know to gauge the seriousness of the situation.  They may minimize what has happened in order to speed up their release from the hospital or, in worst-case scenarios, in order to mislead the staff so they can commit suicide.  Or they may simply withhold information because they are severely depressed and withdrawn, or in some cases, if they are under the influence of drugs.  In my experience, many hospital staff members are under the mistaken belief that they cannot speak to the family without the patient's consent...even if it is simply to ask the patient's family why they brought the patient to the hospital.

The safety of the patient is the ultimate concern.  Understanding what risk factors are present is essential for the staff and the doctor to take the appropriate suicide precautions.  For your part, it is important not to rely on the patient to divulge everything to the admissions staff.  Make sure they are aware of anything that is alarming about the patient's recent behavior such as self-destructive statements or actions, drug use, legal or financial stressors, the recent break-up of a relationship or loss of a job, the existence of a suicide note, etc.  In some hospitals, it has been my experience that the admissions staff will make no effort to speak with family if the patient appears to be willing to answer their questions, no matter how incomplete their answers, even if family members brought the patient to the hospital.  This seems to be especially true in the case of late-night admissions.

Suicide is an extremely difficult topic to discuss with family and friends, let alone a jury.  People do not want to think about it, let alone have to sit in a courtroom and examine the subject carefully over the course of several days.  I know this from experience.  I have had a close friend commit suicide, and I have represented several clients who have attempted suicide and several families of patients who committed suicide.

In recent years I have deposed several very notable psychiatrists on the subject...psychiatrists who have appeared on NBC Nightly News and other programs when there was a suicide of national interest such as the Virginia Tech shooter who killed several people and then turned the gun on himself...psychiatrists who are heads of some of the most prestigious psychiatric hospitals in the country...psychiatrists who have written or edited some of the most thorough treatises on the subject of suicide.

Many psychiatrists I have spoken to do not believe that there is any one authoritative text on the subject of suicide, the assessment of its risk factors or its treatment.  Perhaps the most important document on the subject is the "Practice Guideline for the Assessment of and Treatment of Patients with Suicidal Behaviors", published as a supplement to "The American Journal of Psychiatry" in November 2003.

What I have witnessed first-hand is that there is a great divergence of opinion on the issue of what the appropriate care is for a patient who is exhibiting suicidal behavior.  In many hospitals, for example, the lowest level of observation for a "suicidal patient" is "15-minute checks" where a tech or a nurse with a clip board makes rounds on the unit and notes where each patient is and what they are doing with a short abbreviation such as "S" for sleeping in their bed in there room. In some hospitals, higher levels of observation, reserved for higher-risk patients, include "close observation" where patients are kept in a common area such as the near the nurses' station where staff can always see them, or "one-to-one" observation where a staff member is assigned to remain within arm's length with the patient at risk at all times.  Closed-circuit cameras can also facilitate closer observation.  On the other hand, some hospitals consider "15 minute checks" their highest level of observation and place a patient on "close observation" or "one-to-one observation" in only rare instances where the patients actually attempt to injure or kill themselves while on the unit.  In these settings, the care-providers oftentimes largely ignore risk-factors that the patient has exhibited prior to their hospitalization as long as the patient agrees to enter into a "contract for safety" at the hospital, that is, if the patient promises not to harm himself in the hospital and promises to alert staff if he starts to feel suicidal.

One thing is certain, if you have a loved one who committed suicide or suffered a serious injury as a result of an attempt while he was in a hospital, you need to talk to an attorney who is experienced in handling these cases and trying them to a jury.

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