Is the Irreversible Truly Unforeseeable?: The Law of Suicide Prevention
(This article was originally published in the March 2014 Issue of the Journal, published by the Florida Justice Association. The article is reprinted here by permission of the author)
According to the Centers for Disease Control and Prevention, the number of suicide deaths in 2010 was 38,364, making it the tenth leading cause of death in America.[i] For younger demographics, the numbers are even more startling. In children ages 10-14 and teenagers 15-19, it is the third leading cause of death, and for those ages 20-34, it is the second leading cause of death across all races and genders. That represents 15.2 percent of all deaths in the 15-19 year old category and 15.8 percent of deaths of 20-24 year-olds. Given these figures, what can be done to prevent what is often termed “unforeseeable?”
It is well settled that the law holds professionals to a higher standard in their particular field than non-professionals. And this is for good reason. Signs of depression and the potential for harming oneself that may often go un-noticed by a person’s closest relatives and friends can be readily apparent to trained physicians and, in particular, psychiatrists, psychologists, and mental health professionals. Those who practice in this industry are trained to assess, identify, and prevent, among other things, suicidal ideation and attempts. Still, the law in Florida has viewed the sciences of psychology and psychiatry as anything but exact.
Generally the standard of care required of health care providers is “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”[ii] One would naturally think that an identical duty would be required of mental health professionals; however, the duty that arises, and in some cases whether a duty arises at all, has been challenged by Florida courts that have limited injuries characterized as “unforeseeable.” This has particularly shaped tort law in relation to mental health patients and their actions. Too often the “unforeseeable act” is the eventual outcome, and foreseeability has vacillated between a question of duty, and therefore a legal question, and an issue of fact and proximate causation.
Whether mental health professionals have a duty to prevent a patient from committing suicide is not well settled. In February, the Second DCA issued its opinion in Granicz v. Chirillo and certified conflict to the Supreme Court.[iii] What is clear is that the law recognizes a categorical distinction between patients in the custodial setting versus outpatients when it comes to the duty owed by mental health care providers. Under the common law, a physician’s duty arises from his education, training, and experience as a health care provider – rather than the setting in which the care is delivered. Florida jurisprudence has evolved to treat mental health professionals differently because suicide is unique and necessarily requires patient volition.
Duty in the Custodial Setting
As Florida courts have stated time and again, the field of psychiatry has progressed dramatically, especially in the last 100 years, from a significant history of simply “confining persons with aberrant behavior in institutions or asylums.”[iv] Originally enacted in 1971, the Florida Mental Health Act, nicknamed the Baker Act after State Representative Maxine Baker, advanced a vision toward protecting both the individual and others while promoting generally less restraint of patients.[v] Among other things, the Baker Act provides for involuntary commitment and examination of individuals who because of a mental illness are thought to present a harm to themselves, others, or be self-neglectful. Once an individual is in-patient, whether by voluntary or involuntary commitment, a specific duty of care applies. If from a breach of that duty, the patient commits suicide or injures himself, the institution is liable.[vi] In the in-patient setting, the duty of the hospital has been predicated upon its “ability to supervise, monitor, and restrain the patient.”[vii] The principle being that when the patient has wholly surrendered himself through commitment, the hospital must take proactive steps and ultimately is responsible for not protecting the individual from himself.
Florida courts have declined to impose an affirmative duty on mental health professionals to affirmatively commit a patient to prevent suicide in an outpatient setting. In Paddock v. Chacko, the 5th DCA addressed that issue where the psychiatrist had advised the patient’s father of the need for her hospitalization, but the father had refused the advice.[viii] The Paddock court declined to extend an affirmative duty to the doctor to involuntarily detain a patient for examination, citing the existence of no language in the Baker Act to that purpose and stating that to hold otherwise “would create an intolerable burden on psychiatrists and the practice of psychiatry.”[ix] Similarly, the Baker Act does not establish an affirmative duty to warn others that a patient may be dangerous because “of the inherent unpredictability associated with mental illness and the ‘near-impossibility of accurately or reliably predicting dangerousness.’”[x] As the 3rd DCA stated in Boynton v. Burglass,
To impose a duty [on a psychiatrist] to warn or protect third parties would require the psychiatrist to foresee a harm which may or may not be foreseeable, depending on the clarity of his crystal ball. Because of the inherent difficulties psychiatrists face in predicting a patient’s dangerousness, psychiatrists cannot be charged with accurately making those predictions and with sharing those predictions with others.[xi]
There the court further focused on the psychotherapist-patient privilege, and declared that the statute providing for disclosure of privileged communications in circumstances of specific threats (now Fla. Stat. 456.059) is permissive and like the Baker Act, it does not create an affirmative duty. In Burglass, the plaintiffs alleged that the out-patient doctor failed to hospitalize his patient and/or warn plaintiff’s son of the patient’s propensity for violence, resulting in the patient shooting and killing their son. The court’s strong language regarding lack of foreseeability has become a jumping off point for other courts and the imposition of a “no duty” analysis in suicide cases.
Foreseeability’s proper place: Duty vs. Causation
Though a basic tenet of tort law, the issue of foreseeability has created ambiguity as to whether it presents a question of law or fact. Perhaps Florida’s best codification of the distinction is McCain v. Florida Power Corp. There the State Supreme Court explained that the duty element of negligence hinges on “whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.”[xii] As to proximate causation, foreseeability is wrapped up in the factual question of whether the injury was a foreseeable and substantial result of the defendant’s breach. Because foreseeability as to duty is a “minimal threshold to open the courthouse doors,” if the defendant created a foreseeable zone of risk, “the trial and appellate courts cannot find a lack of duty.”[xiii]
How then can a mental health provider be liable for what has been so often termed an unforeseeable act: suicide? In fact, that very question has been the impetus for summary judgment in some cases. In Lawlor v. Orlando, the FirstDCA affirmed summary judgment, stating the psychotherapist was under no legal duty to prevent the patient’s suicide.[xiv] The dissent in Lawlor, however, challenged the idea that suicide, in and of itself, is an injury for which no duty can be created, focusing on plaintiff’s expert testimony and then reframing the question. According to the dissent, the majority’s holding was essentially that the defendant-psychologist “had no duty to provide ‘appropriate psychotherapy’ or that no factual dispute exists about whether her alleged failure to do so proximately caused the suicide.”[xv] The holding in Lawlor effectively gives an out-patient psychotherapist a “free pass” in their treatment of eventual suicide-victims.
The Second DCA has rethought the Lawlor reasoning. Sweet v. Sheehan dealt with a psychiatrist’s duty where the physician noted a patient’s severe depression and disappointment at a failed suicide attempt but did nothing further.[xvi] The court restated that, as set forth in Fla. Stat 766.102, the psychotherapist must act in accordance with the prevailing professional standard. That is the physician’s duty. Therefore, the right question is “whether [the psychiatrist] breached that duty by failing to treat [the patient] in accordance with the standard of care required of him,” and whether said breach caused the injury.[xvii] That, as stated in Sweet, is a question for the trier-of-fact. Again taking up the issue in the Granicz v. Chirillo opinion issued in February, the Second DCA held that the specific duty of the psychotherapist is established by expert testimony. Furthermore, the issue is not that the defendant mental health professional had a duty to prevent the suicide, but as Judge Benton directed in his dissent in Lawlor, that he or she had a “duty to provide ‘appropriate psychotherapy.’”[xviii]
How foreseeability engages with duty and causation in the context of mental health professionals and suicide cases may eventually be a question best answered by the Florida Supreme Court. With its opinion in Granicz v. Chirillo in February, the Second DCA certified conflict with the First DCA’s Lawlor decision. Whether this holding will allow courts to rethink duty as it relates to mental health professionals imposing custody on their patients or for failure to warn seems unlikely, especially as the latter presents a conflict with the patient’s right to communicate confidentially with his physician. Regardless, those issues would be better reasoned if they hinged on the prevailing standard of care which is inherently adaptable, as opposed to the rigidly formalistic outpatient/inpatient dichotomy.
[i] Melonie Heron, “Deaths: Leading causes for 2010” in National vital statistics reports; vol 62 no 6. National Center for Health Statistics (2013).
[ii] Fla. Stat. 766.102(1)(2013).
[iii] Granicz v. Chirillo, No. 2D12-5244 (Fla. 2d DCA February 19, 2014).
[iv] Tuten v. Fariborzian, 84 So.3d 1063, 1067 (Fla. 1st DCA 2012).
[v] Fla. Stat. ch. 394.453 (2013) (“It is the policy of this state that the use of restraint and seclusion on clients is justified only as an emergency safety measure to be used in response to imminent danger to the client or others. It is, therefore, the intent of the Legislature to achieve an ongoing reduction in the use of restraint and seclusion in programs and facilities serving persons with mental illness.”).
[vi] Paddock v. Chacko, 522 So.2d 410, 416 (Fla. 5th DCA 1988); see also Lawlor v. Orlando, 795 So.2d 147, 147-48 (Fla. 1st DCA 2001).
[ix] Id., at 415.
[x] Mental Health Care, Inc. v. Stuart, 909 So.2d 371, 374 (Fla. 2d DCA 2005), quoting Boynton v. Burglass, 590 So.2d 446, 450 (Fla. 3d DCA 1991)).
[xi] Boynton v. Burglass, 590 So.2d 446, 450 (Fla. 3d DCA 1991); see also Santa Cruz v. Northwest Dade Community Health Ctr., Inc., 590 So.2d 444, 445 (Fla. 3d DCA 1991).
[xii] McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992).
[xiii] Id., at 503 (emphasis added).
[xiv] Lawlor v. Orlando, 795 So.2d 147, 148 (Fla. 1st DCA 2001).
[xv] Id. at 150. (Benton, J. dissenting) (citing Edwards v. Tardif, 692 A.2d 1266, 1270-71 (Conn. 1997)(“In our view, the circumstances in which a physician may be liable for a patient’s suicide are not limited only to when the patient is in the physician’s custody. Instead, the relevant inquiry is whether a defendant failed to provide a reasonable treatment for the patient and that failure proximately resulted in the patient taking his or her life.”)).
[xvi] Sweet v. Sheehan, 932 So.2d 365 (Fla. 2d DCA 2006).
[xvii] Id. at 368.
[xviii] Granicz v. Chirillo, No. 2D12-5244 (Fla. 2d DCA February 19, 2014). See also Kockelman v. Segal, 71 Cal. Rptr. 532, 558 (Cal. App. 4th 1998), cited by J. Benton, dissenting, in Lawlor v. Orlando, 795 So.2d 147, 149 (Fla. 1st DCA 2001)(“Psychiatrists owe a duty of care, consistent with standards in the professional community, to provide appropriate treatment for potentially suicidal patients, whether the patient is hospitalized or not.”)