The American Foundation for Suicide Prevention (AFSP) lists suicide as ranked 10th among causes of death, claiming nearly 45,000 U.S. lives annually. Philip Resnick, M.D., a forensic psychiatrist and professor at the Case Western Reserve University School of Law, has analyzed many negligence claims based on patient suicide. His research suggests 50% of hospital inpatient and 25% of outpatient suicides result in claims of medical malpractice. The key question is often whether the physician demonstrated levels of knowledge and skill reflecting the standards expected among clinicians in that profession.
Errors of Fact vs Error in Judgment
A differentiation exists between errors of fact and errors in judgment. An error of fact could involve failing to ask the patient if they have any suicidal thoughts, or failing to review records from referring clinicians. Errors in gathering facts as a prudent physician would give merit to claims. After necessary data is collected, physicians have a basis from which to draw conclusions by applying judgment. Errors in judgment are likely less damaging in malpractice cases unless very egregious. Liability is more likely from failing to adequately assess suicide risks rather than the physician’s ability to foresee or predict suicide.
Suicide Risk Factors
The Society of Clinical Psychology defines suicide risk as an assessment based on relevant variables and characteristics such as genetic, demographical, or mental factors. Physicians typically will first categorize risk factors in static or dynamic classifications, then consider acute risk such as follows:
- Static: (Chronic) Generally unable to be changed or existing over a lifetime
- Past suicide attempt or violent event
- Gender or race
- Family history
- Dynamic: May change with intervention
- A treatable psychological disorder
- Dependency on alcohol
- Lack of emotional stability
- Absence of social support
- Acute: Shorter-term risks, that may change
- Having suicide plan
- Recent suicide attempt
- Recent divorce
After identifying risk factors, an assessment can be made about the degree or potential for a suicide attempt. Rapport may need to be developed to obtain truthful responses to critical questions regarding the existence of suicidal ideas or plans. Assessments may not reveal definitive answers, but rather are subject to clinical judgment.
Violating Confidentiality Concerns
What about liability considerations for physicians if patients disclose active suicidal ideas? In today’s highly litigious environment, providers are aware of confidentiality and privacy laws prohibiting the disclosure of personal health information without patient consent. Fortunately, the Health Insurance Portability & Accountability Act (HIPAA) allows exceptions when potential self-harm or harm to others exists. Disclosure is allowable without patient authorization if the safety of individuals or the public is jeopardized.
Importance of Documentation
In malpractice suits like these, sufficient medical documentation is critical. Among the most common allegations in cases following a suicide, many are based on documentation including:
- Failing to evaluate and record a suicide risk
- Insufficient notes regarding diagnosis and evaluation
- Failing to create a record of an examination of current mental state
- Failures in documenting a suicide assessment