Are courts becoming more liberal with the standards by which physicians are judged in failing to prevent suicides?
Traditionally, the professional judgment rule has been used by psychiatrists and other physicians as a defense against cases alleging a failure to predict and therefore prevent a patient from committing suicide. The premise is that if the defendant had acted within the standard of care in evaluating the patient and determined that there was no imminent danger of suicide, then he or she is not liable. Such reasoning is consistent with the understanding that a physician is expected to use his or her professional judgment in treating a patient. However, the fact that two physicians use different approaches to treat the same patient does not mean that one committed malpractice.
Indeed, in New York, the Pattern Jury Instructions state:
The law recognizes that there are differences in the abilities of doctors, just as there are differences in the abilities of people engaged in other activities. To practice medicine a doctor is not required to have the extraordinary knowledge and ability that belongs to a few doctors of exceptional ability. However every doctor is required to keep reasonably informed of new developments in (his, her) field and to practice (medicine, surgery) in accordance with approved methods and means of treatment in general use. A doctor must also use his or her best judgment and whatever superior knowledge and skill (he, she) possesses, even if the knowledge and skill exceeds that possessed by the (average doctor, average specialist) in the medical community where the doctor practices.
By undertaking to perform a medical service, a doctor does not guarantee a good result. The fact that there was a bad result to the patient, by itself, does not make the doctor liable. The doctor is liable only if (he, she) was negligent. Whether the doctor was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence.
A doctor is not liable for an error in judgment if (he, she) does what (he, she) decides is best after careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the circumstances. In other words, a doctor is not liable for malpractice if he or she chooses one of two or more medically acceptable courses of action.
If the doctor is negligent, that is, lacks the skill or knowledge required of (him, her) in providing a medical service, or fails to use reasonable care in providing the service, or fails to exercise his or her best judgment, and such failure is a substantial factor in causing harm to the patient, then the doctor is responsible for the injury or harm caused.
[PJI 2:150 Malpractice – Physician]
A jury should render a verdict in favor of a defendant physician who failed to predict that the patient was going to kill himself if the doctor conducted a careful evaluation of the patient.
An appellate court in New York reaffirmed this principle when it reversed the denial of summary judgment by a trial judge. There, a man committed suicide after he was twice admitted to the hospital for failed suicide attempts. More than a week after the last attempt, he ended his life. Defense experts stated in affidavits that the doctors’ decisions to discharge the patient after the two failed attempts and the primary care physician’s recommendation that he go to the ER if he had suicidal thoughts were appropriate. Evaluations of the patient’s condition were conducted and decisions were made based thereon. The appellate court concluded that the defendants’ course of treatment was within a range of medically accepted choices for a patient after proper examination and evaluation. Therefore, the professional judgment rule insulated them from liability. Park v. Kovachevich. First Department; 2014.
Essentially, this decision supports the principle that a doctor is not liable even when the possibility of the patient committing suicide exists/remains.
A similar analysis was attempted by a trial court in Florida that granted summary judgment in favor of a primary care physician on the basis that a doctor has no duty to prevent an unforeseeable suicide of a person he was treating as an outpatient. However, on appeal, a Florida district court took a position that appears to deviate substantially from the professional judgment rule and found that the issue is not whether the defendant could foresee the actual injury, but whether his acts or omissions raised a “foreseeable zone of risk.” This holding conflicts with the current state of the law in the First District in Florida; thus reconciliation is likely on the horizon by the Florida Supreme Court.