Outpatient Psychiatric Treatment: The Duty to Prevent Patient Suicide

By Alex Stein

In Chirillo v. Granicz, — So.3d —- (Fla. 2016), 2016 WL 4493536, the Florida Supreme Court formulated an important rule for psychiatric malpractice cases. Back in 2001, the First District Court of Appeal decided that psychiatrists assume no liability for an outpatient’s suicide because it is generally unforeseeable. Tort liability, it held, can properly be imposed on a psychiatrist only for a custodial psychiatric malpractice. According to the First District, an inpatient’s suicide is foreseeable and psychiatrists can effectively prevent it by restraining the patient. Lawlor v. Orlando, 795 So.2d 147 (Fla. 1st DCA 2001).

The Florida Supreme Court has now overruled Lawlor.

The Court decided that preventing an outpatient from harming himself is well within the scope of the psychiatrist’s duty of care. Whether a psychiatrist owes such a duty to a specific outpatient depends on that patient’s mental condition and the nature of the treatment s/he receives. Foreseeability, the Court held, should only play a role in the jurors’ determination of the proximate cause.

Based on these criteria, the Court ruled that the plaintiff in the case at bar has created a jury question by adducing expert testimony and other evidence indicating that:

  1. His deceased wife was treated for depression as the defendant’s outpatient.
  2. She switched from one antidepressant (Prozac) to another (Effexor) because of side effects, and then decided not to take Effexor either because “she felt well.”
  3. She notified the defendant about her decision to discontinue using Effexor.
  4. Patients who stop taking Effexor abruptly have an increased risk of suicide.
  5. Stopping the Effexor treatment was “a contributing factor” in the decedent’s suicide.

If widely followed as a precedent, this decision will likely produce two effects identifiable as defensive and offensive medicine. The increased prospect of liability for malpractice might make many psychiatrists reluctant to admit suicidal outpatients. This form of defensive medicine will lead to more suicides, as demonstrated theoretically and empirically by Shahar Dillbary, Griffin Sims Edwards & Fredrick E. Vars, The Costs of Suicide. When treating a potentially suicidal patient, psychiatrists might also increase their resort to involuntary hospitalization. This form of offensive medicine will create a mixed social effect: there will be less suicides, but there will also be more involuntary hospitalizations that unnecessarily deny individuals their freedoms.

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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.