Death throes: professional liability after client suicide
Historically, suicide has been considered a crime, resulting in punishment of the deceased (in terms of lost burial rights and criminal status) and their heirs (in terms of possible loss of the estate). Regardless of the circumstances surrounding the event, existing law did not provide surviving family members the right to take civil action subsequent to a relative's suicide. Eventually, evolving wrongful death and survivor statutes allowed for such suits, and with the development of the law related to causation, individuals and organizations could be held liable for the suicide of a client or employee.
When legal action is taken against a therapist or employer subsequent to a client's or employee's suicide, a civil lawsuit (rather than criminal charges) is generally filed. Referred to as tort actions, such suits can be based on negligence, the failure to use reasonable care resulting in damage or injury to another; malpractice, the failure to meet professional standards through improper, illegal, or negligent professional activity; and/or deliberate indifference, the intentional failure to provide a minimum standard of care. The majority of tort actions filed against mental health professionals subsequent to a client's suicide are based on allegations of negligence (such as failure to follow established prevention guidelines) or malpractice (such as misdiagnosis, absent or inappropriate risk assessment, or inappropriate treatment interventions when suicide risk was identified).
In most jurisdictions, the causal relationship between a therapist's negligence and a client's suicide is shown by proving foreseeability; that is, that any other therapist (with similar background, training, and experience) would foresee that certain professional acts or omissions are likely to result in harm or injury to the client. A subtle but important distinction, therapists are not expected to accurately predict suicide, but to foresee or anticipate the possible consequences of their professional acts and omissions, one of which might be suicide. In other words, rather than being judged on the outcome, in suicide cases the courts determine whether the therapist met the existent standard of care during his or her professional contact with the deceased.
Despite the relative rarity of suicide, it is the cause of a disproportionate number of lawsuits brought against mental health professionals, and those suits typically result in extremely large settlements (which are not always covered by malpractice insurance). Because of the high cost...