Suicide is the third most-frequent cause of death in persons aged 10 to 54, and the tenth most-frequent cause of death across all age groups, according to the Centers for Disease Control and Prevention. Half of those who commit suicide saw a physician in the preceding month, and one third were being treated for mental illness, so physicians must be prepared to deal with the ethical and legal ramifications of patient suicide.
Say you are a family physician, and you are treating your longtime patient, Mr. Smith, for multiple chronic conditions and back pain. During a recent visit he looks disheveled and tired, and asks you about prescribing something to him for difficulty sleeping.
You learn that he just lost a very close friend to cancer and has been feeling “blue” nonstop for about two months. He admits that his medical condition has really been bothering him and that he just, “wants it all to stop.” He assures you that he wouldn’t leave his family alone, but “bad thoughts” have crossed his mind.
You are about to prescribe his usual monthly allotment of pain medication and are considering his request to add sleeping pills. But should you? What are your duties to this patient now that he has expressed to you that he has thought, even in a fleeting way, about ending his life? Should you contact a family member or police? What about doctor-patient confidentiality?
As the example illustrates, the issue is not limited to physicians who focus their practices on mental health. Depression and psychosis can have physical symptoms, such as sleeplessness or gastrointestinal distress, and because many significant illnesses such as cancer, HIV-AIDS, seizure disorders, or conditions that cause chronic pain result in higher suicide rates amongst sufferers, almost any type of physician may, at some point, face a patient who is considering self-harm.
What the law says
While the law traditionally imposes no general duty to prevent another person from taking his or her own life or self-injury, the “special relationship” that exists between a physician and a patient can give rise to a duty where none would otherwise exist.
The issue of whether a “special relationship” exists is fact-sensitive. A physician who becomes aware during a treatment visit that a patient is considering suicide would be ill-advised to do nothing with that knowledge. In those circumstances, a physician can face liability for medical malpractice and/or ordinary negligence, as discussed below.
The countervailing argument is the patient’s right to confidentiality in treatment. Most physicians are aware of the myriad privacy laws that prohibit them from disclosing personal health information (PHI) without a patient’s express consent. Violating privacy laws can result in civil liability and other sanctions.
Studies have indicated that questioning a suicidal person about his or her plans does not increase the risk that suicidal thoughts will be acted upon, and can lessen a patient’s anxiety and shame.
Thus, physicians should not be afraid to confront a patient who has expressed or is suspected of having suicidal thoughts in a treatment setting. Such discussion may lead to the patient’s consent to further treatment and/or to the disclosure of PHI to others who can help. Such consent should be documented, however.
What should a physician do if the patient admits to suicidal thoughts and refuses treatment and/or disclosure to others who can help?
Fortunately, many privacy laws provide an exception for a physician’s disclosure of PHI without the patient’s consent in order to prevent imminent self-harm or harm to others.
The Health Insurance Portability and Accountability Act (HIPAA) permits a physician to release PHI without the authorization of the patient if the physician believes, in good faith, that the use or disclosure, “is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public and is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.”
In addition, HIPAA expressly creates a presumption that a physician is acting in good faith if the physician’s belief of a serious and imminent threat is based upon the physician’s actual knowledge or a credible representation by another person with apparent knowledge.
State laws differ
Under the laws of the individual states, which may or may not pre-empt HIPAA, the landscape is more complicated. Physicians should consult with an attorney to understand the options available before a crisis arises. The good news is that most state laws provide an exception to privacy laws to safeguard a patient whom a physician believes in good faith to be at risk of self-harm.
What if the physician, after discussing the issues with the patient, decides to do nothing and makes no disclosure or otherwise seeks intervention? If the patient subsequently attempts or commits suicide, can the physician be held liable?
Courts recognize that the prediction of future events and other people’s actions is not an exact science. A review of court cases shows that generally courts will not impose liability on a physician for a mistake in professional medical judgment, so long as the decision is the product of careful examination. Accordingly, the physician who, after review of the patient’s medical history and other necessary factors, determines that a patient is not at imminent risk for self harm, will not have his or her professional judgment overruled by the court if the patient commits suicide.
Physicians can be held liable, however, where the patient’s suicide was foreseeable, and the physician’s negligence in preventing the suicide was the actual and proximate cause of the patient’s suicide (i.e., there were no intervening events). Physicians have been held liable, for example, for their failure to warn family members or authorities of a patient’s suicidal tendencies, for their administration of medications or failure to administer medications that led to a patient’s suicide, and for their failure to commit or confine a patient when necessary to prevent the suicide attempt.
Courts will not usually accept as a defense to the action that the patient “assumed the risk” involved in attempting suicide, because the patient has not, by that act, knowingly excused the doctor from the physician’s duty to render adequate medical care. The defense of comparative fault of the patient in causing his or her own injuries also is routinely rejected by the courts, unless the patient provided false or misleading information to the physician.
The importance of documentation
Perhaps the most important element in any inquiry is the physician’s documentation.
Whether a physician chooses to disclose a patient’s suicidal tendencies or not, clear and contemporaneous documentation of the patient’s presentation and the clinical rationale for the physician’s decision is crucial to any subsequent review of the physician’s actions.
A review of case law reveals far more cases successfully prosecuted against physicians who did nothing to prevent or who exacerbated circumstances leading to the suicide of a patient, compared with those who were successfully prosecuted for confidentiality violations. A generally proactive stance this would seem to be the best medicine.
Eve Green Koopersmith, JD, is a partner and Colleen M. Tarpey, JD, is an associate at Garfunkel Wild, P.C., in Great Neck, New York. Send your legal questions to firstname.lastname@example.org.