Consider the following case example from one of the author’s recent expert witness testimony:

This case was settled by the defendant’s insurance company for several hundred thousand dollars, without going to trial. This occurred despite a deposition process in which the plaintiff’s expert witnesses admitted that the community standard of care had been followed. One expert even testified that he did not work with suicidal patients and had not for several years! Debriefing with the defendant’s attorneys revealed that the insurance company had calculated the costs of putting on a trial, compared that to the cost of settlement, and decided the difference did not favor going to trial.

Legal concerns come from a variety of directions, but two predominate. The first concern arises from the dictates of state statutes that almost invariably require involuntary hospitalization of a patient who is assessed as an imminent threat to commit suicide. If commitment steps are not followed in such situations, the therapist is potentially liable for damages that could accrue from the patient’s future actions. To make matters worse, this can be a legal double bind. A lawsuit is possible if there is failure to hospitalize given the presence of generally accepted suicide risk indicators. On the other hand, there is the growing potential of civil rights lawsuits from patients who are detained and later claim they never met commitment criteria. These suits are potentially more troublesome because they correctly take suicide risk prediction and assessments of dangerousness to task.

Once involuntary treatment is initiated, another dilemma arises. Performing legally required treatment is certainly not the same as performing good treatment. There is often a discrepancy between what is stated in the law for social control and what seems the best and most appropriate clinical way to approach the problem. Hospitalization is usually addressed in the state laws as a prescribed treatment, yet it is clearly of equivocal value for the suicidal patient. In some patients, it may elevate suicide risk, especially for the longer term, by decreasing their sense of autonomy and efficacy.

Most hospitals and associated systems have risk management departments whose chief concern is to reduce the threat of successful lawsuits. These departments have not been overly successful, but the risk management business continues to thrive. For example, many hospitals via policy will not discharge or give a pass to a patient who admits to being suicidal. This can create a pretext of good risk management in which the patient is encouraged to lie about his or her real state of mind. Ironically, negligent death suits are raised regardless of whether the inpatient site did or did not assess prepass or predischarge suicidality. Staff can be sued for either not assessing or incorrectly assessing. The message is this: Do not mistake good risk management for good treatment.

The second predominant legal concern comes from the fear of potentially disastrous legal consequences arising from the suicide of a patient. Many clinicians fear that no matter what they do, they will be blamed and legally pursued in such a circumstance. They may be right. Many lawsuits have been launched with a scant basis for negligence. The tactic in these suits seems to be to cast a very broad net, looking for the proverbial "deep pocket," and hoping that the entity (usually an insurance company) will settle out of court. Most negligence suits cite one or more of the following causes: 1) failure to properly assess suicidal potential, 2) failure to take adequate measures to safeguard the patient, and 3) failure to perform appropriately aggressive treatment of the patient’s condition.

Often, these cases are settled out of court for economic reasons. The settlement relates to the cost of putting on a trial versus the amount sought (i.e., if the costs of trial are deemed greater than the cost of agreement). If negotiations reduce the gap to an acceptable level, the insurance company will settle rather than risk, even if unlikely, a large jury settlement. Many clinicians still do not understand this settlement mentality; they see the court action as an opportunity to be vindicated. A settlement can therefore leave the clinician with mixed feelings: relief that the suit is over and a simultaneous belief of being found guilty. The message is this: In malpractice matters, the American legal system is no longer a pure justice system. Economic concerns can become paramount. Our best advice is to remember that in the litigious climate in the United States, lawsuits can happen anytime and for any reason. You may not be able to keep from being sued, but you can increase your chances of a successful defense. Think clearly and document your thinking. If you do not write it down, it did not happen. Have a reasonable treatment plan and stick with it. If you are worried about malpractice suits, increase your malpractice insurance. The following five steps are all indicative of good practice and therefore proactively address legal concerns.

Although it is inherently absurd to assume that a self-inflicted act such as suicide can be caused by the actions of another, this is "reality" as defined by the American legal system. In the final analysis, the legal system is based on the interpretation of broad statutes. One way to begin reducing the volume of litigation is to sponsor laws that better define what types of psychiatric outcomes can by definition be related to negligence. Moving suicide into the realm of nonculpability would much more accurately represent the nature of the act itself and specifically honor the fact that the mental health profession does not currently possess the technology for accurate prediction or prevention of the act.