Can Negligent Providers of Medical Care Use the Patient’s Self-Destructive Behavior to Fend Off Liability?

By Alex Stein

The Colorado Supreme Court recently delivered an important decision on medical malpractice, P.W. v. Children’s Hospital Colorado, — P.3d —- (Colo. 2016), 2016 WL 297287. This decision denied a hospital the comparative negligence and assumption of risk defenses that purported to shift to the patient the duty to eliminate or reduce the risk that the hospital was obligated to guard against.

The defendant hospital admitted a known suicidal patient to its secure mental health unit and placed him under high suicide-risk precautions. The hospital’s staff failed to follow those precautions by allowing the patient to be alone in a bathroom for twenty minutes. During these twenty minutes, the patient hanged himself with his scrub pants and suffered a devastating anoxic brain injury.

In the ensuing malpractice suit, filed by the patient’s father, the trial court granted the plaintiff’s motion for summary judgment and dismissed the hospital’s comparative negligence and assumption of risk defenses. The hospital’s appeals brought the case to the Colorado Supreme Court that ruled for the plaintiff. The Court decided that neither of the two defenses was available to the hospital because it had a duty to protect the patient against his own suicide.

In the Court’s words,

“If the defendant’s duty to protect the plaintiff contemplates, encompasses, and thereby subsumes the plaintiff’s duty not to act in a certain way, then the plaintiff cannot be faulted for acting in that way. …. When a hospital admits a person into its custody who the hospital knows is actively suicidal, and when the admission is for the purpose of preventing that person’s self-destructive behavior, the hospital assumes a duty to use reasonable care in preventing the patient from engaging in such behavior. …. [T]his duty subsumes any fault attributable to the plaintiff for harm suffered as a result of those self-destructive acts.”

This was a first-impression decision that set a precedent for Colorado law. In making this decision, the Court relied on precedents from other states that included an important medical-malpractice decision of the Minnesota Supreme Court, Tomfohr v. Mayo Foundation, 450 N.W.2d 121 (Minn. 1990).

The “overlapping duty” test, followed by this and many other courts across the United States, is not always easy to apply. Courts applying this test refuse to discount the negligent defendant’s liability by the victim’s comparative negligence upon finding that the defendant’s duty to the victim included an obligation to prevent the specific self-destructive behavior that injured the victim. Note, however, that it is incumbent on the plaintiff to prove the existence of an overlapping duty. Consider a psychiatric patient who doesn’t swallow the antidepressants his doctors give him. Instead, he hides them in his mouth and then throws them away. Under any such scenario, the plaintiff would only be able to negate the defendant’s comparative negligence defense if he shows that the defendant had an affirmative obligation to verify the pill’s swallowing by the patient. The defendant’s general duty as a provider of psychiatric care will not always include this specific obligation.

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About Alex Stein

Alex Stein is a Professor of Law at Brooklyn Law School. Before joining Brooklyn, Alex was a Professor of Law at Cardozo Law School (2004-2016) and served for more than a decade at the Hebrew University of Jerusalem Faculty of Law (1991-2004). He also held visiting professorial appointments at Alabama, Columbia, Miami, and Yale Law Schools. In Fall 2016, he visited Harvard Law School, where he taught Torts and a seminar on Medical Malpractice. Alex's specialty areas include Torts, Medical Malpractice, Evidence, as well as general legal theory and economic analysis of law. He authors three books, An Analytical Approach to Evidence (with Ronald J. Allen et al.) (6th ed. 2016); Foundations of Evidence Law (2005) and Tort Liability under Uncertainty (2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals. Alex was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice, http://www.steinmedicalmalpractice.com, that covers all significant developments in medical malpractice laws across the United States. He graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.