Legal Advisor

CASE

Suicide: Are You Liable?

Is a clinician liable for not properly treating a patient who later dies by suicide?

BY ANN W. LATNER, JD

This case involves a depressed patient who, after 3 months of outpatient treatment, purchased a shotgun and killed his wife, 3 children, and himself. The family’s next of kin brought a wrongful death action alleging that the patient’s health care providers had committed medical malpractice leading to the deaths. The question presented was whether the clinicians have a duty of care to the patient and his family in the absence of foreseeability of harm or a custodial relationship with the patient.

Facts of the Case

Mr B was a 45-year-old, married businessman with 3 children. He had his own web-based business with several employees. Mr B went to his medical center’s urgent care clinic complaining of difficulty sleeping and chest tightness, which he attributed to work-related stress due to financial difficulties with his business. The PA who saw him at this visit concluded that his symptoms were caused by anxiety and prescribed alprazolam. Two days later, Mr B saw his primary care provider (PCP) and reported low mood for the last 2 to 3 weeks and recent weight loss of 20 to 30 pounds. Mr B’s vital signs were normal and he denied any suicidal or homicidal ideation. The PCP prescribed sertraline 50 mg and told Mr B to return in 5 weeks if he didn’t feel better.

Mr B returned to the urgent care clinic in 9 days complaining that sertraline wasn’t working and the alprazolam doses wore off too quickly. He was asked again about suicidal ideation and again denied having any such thoughts. At this appointment, he was prescribed lorazepam for anxiety and zolpidem for sleep. Next, the patient saw his PCP again and had lost another 11 pounds. The physician increased the sertraline dose to 100 mg and changed the sleep medication to trazodone out of concern for possible interactions between zolpidem and lorazepam. The PCP referred Mr B for mental health counseling.

Approximately 2 weeks later, Mr B had a diagnostic assessment with Ms N, an advanced practice

Did the clinicians have a duty of care to the patient and his family in the absence of foreseeability of harm or a custodial relationship with the patient?

Cases presented are based on actual occurrences. Names of participants and details have been changed. Cases are informational only; no specific legal advice is intended. Persons pictured are not the actual individuals mentioned in the article.

registered nurse (APRN) who worked in the psychiatry department of a medical center. Ms N administered the Patient Health Questionnaire-9 (PHQ-9) to Mr B, which indicated that he was severely depressed. She diagnosed the patient with “major depression, single episode, severe, without psychosis.” Mr B denied any suicide attempts or plans but admitted to some idle thoughts of it. Ms N concluded that it was too early in the treatment to assess the efficacy of the sertraline dose and she referred the patient for therapy.

Mr B had 3 therapy sessions with a social worker. The social worker administered the PHQ-9 at the first visit but not at the next 2 appointments. The PHQ-9 that was administered continued to show that the patient was severely depressed and had experienced thoughts of suicide but had no intent or plan to do so. Over the next few weeks, Mr B’s sertraline dose was raised to 150 mg per day but he continued to report depression and anxiety. He then saw Ms N who changed his antidepressant from sertraline to escitalopram. At that appointment, he also admitted to thinking about suicide on “several days” but specifically denied suicidal/ homicidal “ideation, intent or plan.” The appointment lasted approximately 15 minutes. It was the last time Mr B would see a health care practitioner. He postponed his next therapy appointment and shortly after purchased a shotgun and killed his wife, children, and himself.

The next of kin filed a wrongful death action against the medical center alleging that the medical center had committed malpractice in its treatment of Mr B and that appropriate treatment would have prevented him from killing his family and himself.

The medical center moved for summary judgment, asking the court to dismiss the case. The court granted the defendant’s motion, concluding that the medical center did not owe a duty to Mr B or his family because the medical center had no duty to control or protect Mr B absent a custodial “special relationship” that was not present given the outpatient nature of the treatments. The court held that Mr B’s actions were unforeseeable since he had never made threats of violence or engaged in prior violent acts. The plaintiff appealed. The appeals court reversed the lower court’s decision and revived the claims for both Mr B’s and his family’s deaths. The medical center appealed and the case went to the state’s Supreme Court.

Legal Background

The state’s highest court ultimately held that the medical center and its employees would have to stand trial for Mr B’s death, but not for the deaths of his family members. The medical center argued that a malpractice claim shouldn’t proceed if a patient dies by suicide. The Court disagreed stating that it did not hold that the medical center had a duty to control Mr B or prevent his suicide but it did have a duty to provide treatment that met the standard of care. And because it was unclear whether the treatment by the PCP, APRN, and social worker met the standard of care, the issue would have to go to a jury to decide. However, the Court absolved the medical center of responsibility for the deaths of Mr B’s family, holding that Mr B’s killing of his wife and children was unforeseeable as a matter of law and that the medical center owed no legal duty of care to the patient’s family in this case. The case was sent back to the trial court for a jury trial to determine whether the medical center’s clinicians failed to meet the standard of care when treating Mr B for depression and anxiety.

Protecting Yourself

Expert testimony presented by the plaintiff in this case was critical of the actions of the clinicians. The expert opined that the patient was never notified about “black box warnings” about the antidepressants he was taking and that he was prescribed too low a dose of sertraline for his size. The expert also noted that trazodone is known to inhibit the effectiveness of SSRI antidepressants including both sertraline and escitalopram. The expert asserted that the clinicians spent inadequate time with Mr B — noting that his last appointment with Ms N was only 15 minutes and that in one case his medication was adjusted over the phone without an in-person visit. The expert concluded by faulting the clinic for not referring Mr B to a psychiatrist, given his serious depression, and not asking for permission to contact his family.

The PHQ-9 is valuable but only if used consistently and if the results are acted upon. It was clear that Mr B’s symptoms were not improving during his course of treatment. Whether the clinicians are liable for not properly treating him will ultimately be determined by a jury. ■

The state’s Supreme Court held that the medical center and its employees have to stand trial for Mr B’s death.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.