February 5, 1999

A psychiatrist or other physician who is sued for malpractice after a mentally ill patient commits suicide can raise the deceased patient's contributory negligence as part of his or her defense, according to a December ruling by the Illinois Supreme Court.

The Illinois high court's decision reversed an appeals court ruling that the issue of contributory negligence, which is considered an "affirmative defense," is not appropriate in cases where a physician is being sued for wrongful death by the family of a patient who committed suicide. The state supreme court agreed with a ruling on this issue by the trial court, which was then reversed by the appeals court.

The state supreme court justices' ruling relied in part on an amicus curiae brief filed by the Illinois Psychiatric Society and the Alliance for the Mentally Ill of Greater Chicago. Their brief cautioned that if the court denies physicians and other therapists the right to use the deceased patient's contributory negligence as an element of their defense when they are sued, they would shy away from treating patients who have suicidal ideation out of fear about their liability exposure.

The case at issue, Hobart v. Shin, was filed by Mildred Hobart after the 1989 suicide of her 27-year-old daughter, Kathryn Hobart. The defendant, Daniel Shin, M.D., is a family practitioner at the student health service at the University of Illinois-Chicago and was Kathryn's primary care physician. During a visit on August 9, 1988, Shin diagnosed her as having a general anxiety disorder and noted that she denied having any suicidal thoughts. Shin saw her again on August 18, at which time she was feeling better and was not suffering the mood swings she described at the earlier visit.

On November 21 Mildred Hobart telephoned Shin because she was concerned that her daughter was experiencing panic attacks and could not sleep. She told him that she had taken Kathryn to their family doctor, who prescribed an antianxiety drug and urged a referral to a psychiatrist. Shin agreed with the referral recommendation and arranged for a psychiatric evaluation that day. He was aware that she had attempted suicide seven years earlier.

The following day Shin spoke with the psychiatrist, who informed him that Kathryn's account of current and past symptoms indicated depression of long standing accompanied by panic attacks. The psychiatrist agreed that Kathryn was not suicidal, but she recommended psychotherapy for the woman. Later that day, Shin again saw Kathryn. This time she was experiencing pronounced hopelessness and insecurity and had lost her appetite. Shin also suspected that she was wrestling with suicidal thoughts, and he recommended hospitalization, which she refused. He did, however, convince her to see a psychologist at the student health service later that day. The psychologist discussed hospitalization with Kathryn, who consented.

The psychiatrist who treated her at University of Illinois Hospital prescribed the antidepressant doxepin. She was discharged after about three weeks, at which point her mood had improved dramatically and she appeared to be free of suicidal thoughts. She left with a prescription for 90 50-mg doxepin pills, which should have lasted one month. One refill was allowed. This amount resulted from her request that she be given enough medication so that she could save the expense and time that frequent refills would entail.

She did well for the next several weeks, until her backpack was stolen, which precipitated a severe depression. Two days later she checked into a motel room and took a fatal overdose of about 10 times the lethal dose of doxepin.

The trial court found in favor of Shin in Mildred Hobart's malpractice suit in which she claimed that Shin was negligent for not collaborating with the psychiatrist about the medication prescription given her daughter and for inadequately monitoring her medication use.

The appeals court reversed the verdict, ruling that the lower court should not have allowed a contributory negligence defense in this type of case. It ordered a new trial. Shin's attorney then appealed to the state supreme court, which disagreed with the appeals court ruling and affirmed the trial court's finding in favor of the physician.

The supreme court justices cited the state civil code in their ruling, which says that "a plaintiff whose contributory negligence is more than 50 percent of the proximate cause of the injury or damage for which recovery is sought shall be barred from recovering any damages. . . . The statute makes clear that people generally have a duty to exercise ordinary care for their own safety." They refused to accept the appeals court's argument that this statute does not apply to cases in which a suicidal patient in treatment takes his or her own life. In this case, they noted, evidence showed that Kathryn had improved considerably in the weeks before her death. "She was smiling and upbeat and talking about plans for her future." They thus agreed with the trial court that her act was premeditated and that she did bear a majority of the responsibility for the outcome. They saw no negligence in the primary care and psychiatric physicians' complying with her request for a larger supply of doxepin, so she could avoid frequent trips to the pharmacy.

"To rule otherwise would be to make the doctor the absolute insurer of any patient exhibiting suicidal tendencies," the supreme court justices emphasized. "The consequences of such a ruling would be that no health care provider would want to risk the liability exposure in treating such a patient, and, thus, suicidal persons would be denied necessary treatment. Public policy cannot condone such a result."

This argument cited by the Illinois justices closely parallels a point that the Illinois Psychiatric Society stressed in its amicus brief. It warned that upholding the appellate court's ruling "could be misread as suggesting that a doctor can be legally responsible just because a 'mentally ill' patient committed suicide while in a doctor's care."

The Illinois high court also understood the consequences as explained by the psychiatric society. "Any such implication would discourage psychiatrists and other physicians from providing medically appropriate care to potentially suicidal patients," the brief cautions. "Physicians have a limited ability to predict suicide. Even with the best of medical care not all deaths from suicide can be prevented (just as not all deaths from heart disease or diabetes can be prevented)."

The Illinois psychiatrists' brief also points out that the appellate court was mistaken in its assumption that patients with mental illnesses should automatically be considered incompetent. These disorders vary tremendously in severity, length, and episodic nature, it explains.

The decision is posted on the Internet at www.state.il.us/court/supremes/84667.htm.