When Rodney Vivian, MD, a psychiatrist in Cincinnati, Ohio, was sued for medical malpractice after a psychiatric inpatient died by suicide, he recalls being naive about the process and how difficult it would be. “I was thinking that truth and common sense would prevail. How stupid I was,” he said.
Although Vivian, who was at the time the medical director of a hospital psychiatric unit in Ohio, was found not liable in two appeals, the legal process dragged on for 6 years, creating an emotional roller coaster of sadness, fear, vulnerability, and anxiety.
“The lawsuit took a big chunk out of me, and there was a sense of unfairness. It was incredibly humiliating and destructive; and it did not make me a better person or psychiatrist,” Vivian said.
Vivian is just one of the many psychiatrists who have had their world turned upside down after a patient suicide. When such events occur, grief-stricken families often point the finger at the treating psychiatrist. Although lawsuits are rare in psychiatry, patient suicide can lead to a myriad of emotional, legal, and career consequences.
Tyler Black, MD, child and adolescent psychiatrist and assistant clinical professor at the University of British Columbia in Vancouver, Canada, likens patient suicide to “a nuclear bomb” but emphasizes the importance of not classifying such events as a medical error or assigning blame.
“Starting with the assumption that suicide is always avoidable is not evidence-based,” Black said.
Although patient suicide can occur across medicine, the odds are alarmingly high in psychiatry.
“There’s at least a 50-50 chance that a psychiatrist is going to face the suicide of a patient,” said Eric Plakun, MD, medical director/CEO at the Austen Riggs Center, Stockbridge, Massachusetts, a hospital-based facility that offers a continuum of psychiatric treatment. Quoting forensic psychiatrist Robert Simon, Plakun said, “There are two kinds of psychiatrists ― those who have had a patient die by suicide, and those who will.”
There are two kinds of psychiatrists — those who have had a patient die by suicide and those who will.
Research from 2015 shows that among specialists, psychiatrists are among the least likely to be sued. A 2007/2008 Physician Survey from the American Medical Association showed that 22.2% of psychiatrists had been sued for malpractice; the probability that they would face a claim each year was only 2.6%. However, failure to prevent suicide is one of the top reasons for lawsuits.
One report from 2008 suggests that from 20% to 68% of psychiatrists will lose a patient to suicide. A report co-written by Plakun in 2005 notes that about 1 in 6 psychiatric interns and 1 in 3 psychiatric residents will experience a patient suicide some time during their training. The authors add that 50% of all psychiatrists will have a patient die by suicide during their career. That risk stays at about 50% for future patients even after a clinician experiences the death of a previous patient.
Although mental health professionals prevail in up to 80% of suicide-related malpractice cases, such events are still emotionally devastating for everyone involved.
Experts, including Black, say it is important for clinicians to not “turn inward” but rather talk with colleagues in a safe setting. When a patient dies by suicide, it is a huge event, he notes. “It fuels a lot of fear and a lot of guilt, worry, and sadness.”
When a patient dies by suicide, it’s a huge event. It fuels a lot of fear, guilt, worry, and sadness.
Paul S. Appelbaum, MD, past president of the American Psychiatric Association and Dollard Professor of Psychiatry, Medicine, and Law at Columbia University Vagelos College of Physicians and Surgeons, New York City, notes that patient suicide will happen.
The problem with many administrators who talk about a target of “zero suicide” is that when suicide does occur, it can lead to the erroneous conclusion that someone is to blame, says Appelbaum, who is also director of the Center for Law, Ethics, and Psychiatry at Columbia University.
“That’s not necessarily true and contributes to finger-pointing,” he said.
Stopping the Blame Game
Black says his first experience as a psychiatry resident was arriving at the hospital and finding the body of a patient who had died by suicide by hanging. Although he did not know the patient, Black said he had a strong emotional response that was coupled with an intense and sometimes confusing reaction by the hospital administration, including what he called “nonsensical banning” of pencils on the ward.
Black is now the medical director of emergency psychiatry at BC Children’s Hospital and specializes in suicidology and emergency/crisis youth mental health care. He said during a recent live chat on Twitter that he does not predict suicide but instead “assesses risk,” meaning he examines potential risk factors in his patients
“If systems and administrators (And consulting doctors) could recognize this, the ‘blame game’ would severely decrease. From the advocacy end, we have to stop seeing suicide as a ‘medical error,’ ” Black tweeted.
“There’s a strong administrative push, especially in the face of suicide, to dive into the [occurrence] as if it must be that an error was made,” he told Medscape Medical News.
To help counteract any potential finger-pointing, Black has created a free-to-download patient risk assessment document called the Assessment of Suicide and Risk Inventory (ASARI) for use at every patient visit.
“ASARI was designed to walk an assessor through their thinking process such that they can put all of their thoughts down on one piece of paper. It makes it a better communication document, and it’s definitely better medicolegal documentation,” he says.
Appelbaum notes that although having documentation is beneficial, “I don’t think that you necessarily need to separate actions that are ‘protective’ from actions that are intended to help a patient.”
However, he points out that if a psychiatrist conforms to or exceeds the standard of care, including conducting appropriate suicide risk assessments, developing an appropriate treatment plan, and keeping comprehensive documentation, these measures “should provide an effective defense to claims of malpractice or negligence.”
Vivian says that during his 40-year career in psychiatry, there have been about 12 “office patients” who died by suicide. However, nothing prepared him for the fallout from a lawsuit.
In 2010, a patient who had overdosed was transferred to the psychiatric unit of Mercy Health–Clermont Hospital, in Clermont, Ohio, where Vivian was the admitting physician. Although the hospital staff was ordered to check on her every 15 minutes, her husband found her unconscious from a hanging attempt when he came to visit the next evening. After she was transferred to the ICU, she was taken off life support and died a few days later.
“It was a horrendous event,” Vivian says.
The family sued the hospital, and the matter was settled out of court without Vivian’s knowledge. The family also filed a separate lawsuit against Vivian, which went to trial 3 years later.
“My insurance company’s claims person was very supportive and wanted me to not settle. She agreed that I didn’t do anything wrong and that I needed to face this,” he added.
In the first trial, a jury found Vivian not liable. Six months later, the plaintiff’s attorney filed an appeal. A year after the first trial, the court of appeals came back with a new ruling in his favor, and in a subsequent appeal, the Ohio Supreme Court also ruled in his favor.
Vivian notes that there really are no winners in these situations. “Even though the jury ruled in my favor, there was never a sense of ‘success.’ I could never feel good about what happened.” He was told the insurance company spent more than $300,000 on his defense.
There was never a sense of ‘success.’ I could never feel good about what happened.
Although he no longer performs psychiatric inpatient admissions, Vivian continues to work in private practice and provides psychiatric consultation to patients at a local medical center.
“I consider my work as a blessing in my life, and I continue to learn from my patients,” he says.
“Will I Be Sued?”
Appelbaum notes there is a difference between a malpractice claim that may be filed and a “payout” to plaintiffs because of a negotiated resolution of a case or an award that is made at trial.
Malpractice insurers may raise the rates of a physician who has been found at fault in one or more legal actions in which financial settlements have been paid out, he says.
The issue in any malpractice case is whether the psychiatrist met the standard of care, which is traditionally defined as “skill and learning that is ordinarily possessed and exercised by members of that profession in good standing.”
“No physician is expected to be the guarantor of a good outcome of a case. Sometimes things go wrong. Merely because there’s a bad outcome, merely because a suicide has occurred, doesn’t mean that the psychiatrist was negligent,” Appelbaum said.
“No physician is expected to be the guarantor of a good outcome of a case. Merely because there’s a bad outcome doesn’t mean that the psychiatrist was negligent.”
No physician is expected to be the guarantor of a good outcome of a case. Merely because there’s a bad outcome doesn’t mean that the psychiatrist was negligent.
He believes all large centers should have a “clear-cut plan” in place to assist clinicians in the event of a patient suicide. Such plans should help in dealing with stress from losing a patient and should provide guidance about how to handle any potential lawsuit.
For those worried that a patient’s suicide will shadow them through their career, Appelbaum says that that can happen, especially in cases involving a financial settlement against the clinician.
Such cases must be reported to the national practitioner databank, where they can be accessed by any licensing body in any state when physicians apply for a medical license.
In addition, Appelbaum points out that licensure, medical staff, and malpractice applications typically require disclosure of a history of successful or unsuccessful claims filed against a physician. Although that may be limited to the past 10 years, the requirement can go on indefinitely.
Beware How You Share
Plakun notes that there is a sense of isolation for a clinician in cases of patient suicide and that physicians often turn inward. He adds that although it is important to talk with others, in institutions, this is best done in a “peer-review, protected space” ― and perhaps with a lawyer present.
However, Appelbaum warns that sharing information, even in this type of setting, may not offer legal protection. Talking to others in order to get some emotional support is permitted once the statute of limitations for filing a claim has lapsed or if a claim has been closed, he notes.
Discussing a case of patient suicide with peers prior to that can have serious legal implications, he adds. Colleagues can be called to testify in any resulting legal case and disclose what was said during such conversations.
“The typical advice that a risk manager, a claims manager, or an attorney would give to a clinician is, Don’t talk to other people about it other than the lawyer or claims manager who’s dealing with the case,” he noted.
That said, there are three general exceptions to this rule. These include attorney-client privilege, any matters discussed with the physician’s own therapist, and, “depending on the state, there are varying protections for what’s considered ‘peer review.’ “
For instance, when hospitals implement a formal review process after an event, what is said during discovery may be protected. However, not all states have such protection. That’s why it is important to understand what the law is in your particular state, says Appelbaum.
Support for Psychiatrists
Kaz J. Nelson, MD, psychiatrist and associate professor at the University of Minnesota Medical School, Minneapolis, Minnesota, also works with high-risk populations, including those with acute suicidality and self-injury.
During a recent chat on patient suicide, Nelson tweeted: “Sadly in our field, suicide is not an IF but a WHEN. Don’t keep the inevitable shame and sadness to yourself.”
Nelson agrees with Black that it’s important to look into these occurrences as a quality improvement measure, but not as a way to assign blame.
Preparing for potential patient loss “and having very solid, very supportive, very inclusive ‘post-vention’ procedures” is critical, she noted. “When you don’t have these policies and procedures in place and have them very transparent, it creates a culture of silence around the issue.”
Plakun reiterated the importance of not staying silent.
We can’t simply surrender to the idea of not talking about patient suicide. We have to find a way to speak.
“We can’t simply surrender to the idea of not talking about patient suicide. We have to find a way to speak,” he said.
Deborah Brauser is a journalist and the assistant managing editor for Medscape Psychiatry and Medscape Neurology. Deborah has covered news for Medscape for 12 years, including features, breaking news, and more than 75 medical conventions. Follow her on Twitter: @MedscapeDeb.