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Psychiatrist Not Liable For Patient’s Suicide
Published in the February 2008 issue of Litigation Notes - View Article
Summary: Analysis of psychiatrist’s duty to properly assess risk of suicide and keep patient safe
Robert Buyze was a resident of London, Ontario. In 1992, he began suffering periodic bouts of depression.He was treated by his family doctor and was prescribed various anti-depressants. In 1998, he was referred to a psychiatrist, who treated him for chronic depression. In the fall of 1999 he was becoming increasingly anxious and depressed and began to miss work. His employer threatened to terminate him and he went on disability leave.
In December of 1999, was seen at London Health Sciences Centre (“LHSC”) where he was reported to be “experiencing tearful episodes, profound lethargy, feels life is not worth living with suicidal thoughts being present with a plan although [he] denies he would act upon any of these thoughts….”. He was not admitted to hospital on that occasion.
He returned to LHSC on January 27, 2000 and he was admitted.He was expressing suicidal thoughts involving poisoning himself or getting involved in a car accident.was treated and discharged on February 9, 2000 with a diagnosis of recurrent depression with “partial remission” and benzodiazepine dependence.The plan was for him to see his family doctor and a therapist to deal with his dependency and anger issues. His medications were adjusted, as he had expressed concern that they had not been working.
He began to see a new psychiatrist, who began sessions of psychotherapy.His first visit was on March 1, 2000.However things did not improve and on March 12 he called the London Mental Health Crisis Service, which sent a team to his home.He was described as being “very suicidal”, with “the means to complete this task” as he was in possession of a large quantity of medications and was threatening to take them. It was arranged that he would go to the Emergency Department at LHSC that day, where he was again reported to be very suicidal “with thoughts of overdosing and passive homicidal ideation toward his wife and daughter”.However, it was also reported that he was feeling able to control himself at the moment.
He was assessed by Dr. Desjardins, a psychiatric resident, who diagnosed him as suffering from dysthymia, an adjustment disorder and suicidal ideation.was prescribed Nozinam and discharged with the notation that he “may need re-admission at some point but able to contract for safety at present.”In other words, Mr. Buyze was prepared to undertake to his caregivers not to attempt suicide.The next day, March 13, Mr. Buyze called the Urgent Consultation Service at LHSC and was given an appointment with a Dr. Morin for March 14.He was angry that he had not been admitted to hospital the day before.
On the morning of March 14, Mr. Buyze awoke feeling “very agitated, weepy and expressing regrets”. Instead of keeping the appointment with Dr. Morin, he and his wife returned to the Emergency Department at LHSC, arriving about 8:30 a.m. . He said that he did not think that he could stay safe and wanted to go to the hospital. Upon arrival at the hospital, the Emergency Room doctor asked what he could do for Mr. Buyze and he responded: “Got a gun?”At 9:20, he was assessed by the Central Emergency Psychiatric Services team (CEPS), who reported that he was suicidal with a plan to overdose – “thoughts of jumping out of bed and taking pills – closest he’s come to carrying out suicide”.
At 10:20, Dr. Malla, the on-call psychiatrist, arrived at the Emergency Department and interviewed Mr. Buyze and his wife. Dr. Malla’s provisional diagnosis was “major depression with anxiety and a history of suicidal ideation with “no attempts/no plans.” He noted that Mr. Buyze was “unable to cope, intense anxiety, ruminations about suicide, no history of suicidal attempts.” Dr. Malla commented that Mr. Buyze’s medication was a “hodgepodge” and said that he was going to admit him to get it sorted out.Both Mr. and Mrs. Buyze were relieved that he was being hospitalized. At 10:55 a.m. he was admitted as a voluntary patient.Dr. Malla later stated that if Mr. Buyze had not come in voluntarily, he would have admitted him as an involuntary patient. He ordered that Mr. Buyze be observed hourly and he made adjustments to his medication.
The nurse assigned to Mr. Buyze was Rosalind Silverman.She completed her own assessment of Mr. Buyze and concluded that he had suicidal ideation and a plan.However there was no previous suicide attempt, no attempt to complete unfinished business and no history of family suicide.She considered that he was not an immediate suicide risk, a risk for violence or at risk for leaving the hospital with out leave ( an “AWOL risk”). At about 2:00 p.m. she paged Dr. Malla for clarification regarding Mr. Buyze’s medication and to change the hourly observation level.Thereafter, she observed Mr. Buyze as frequently as four or five times per hour because “her nursing instinct was to watch him to ensure he was being truthful about his self-reported lack of risk for suicide”. She saw him at 5:30 p.m., prior to her supper break.
Mrs. Buyze had gone home and returned to the ward at about 6:30 p.m.She could not find her husband.were conducted but Mr. Buyze could not be found. Dr. Malla was paged and he returned to the hospital and completed a Certificate of Involuntary Admission under the Mental Health Act on the basis that Mr. Buyze was “suffering from a mental disorder of a nature or quality that will result in serious bodily harm to the person unless the person is retained in custody of a psychiatric facility”. Mr. Buyze was located later that evening at his father’s home.He had consumed his father’s medications and died of an overdose.
Mr. Buyze’s family brought a medical malpractice action against LHSC, Dr. Malla and Ms. Silverman. LHSC settled with the plaintiffs, but brought a cross-claim against Dr. Malla for a contribution to the settlement. The Court began by setting out the case law which formulates the duty of care owed by physicians to their patients, the standard of care expected of a specialist and specifically the standard expected of a psychiatrist.
The Court pointed out that the case law is clear to the effect that an error in judgment is not negligence. The Court referred to the case of Ganger v. St. Paul’s Hospital, where the British Columbia Court of Appeal said:
“In a case such as this it is important to distinguish an error of judgment from breach of duty of care. All who are called upon to predict human behaviour recognize the near impossibility of doing so with any confidence. If an attempt of suicide may be said to establish an error in judgment on the part of anyone charged with assessing the risk of that very event who does not anticipate it, then errors in judgment are endemic in the assessment of the risk of suicide. The evidence is clear that an error in the assessment of the risk of an attempt at suicide is as likely as not. Even the best judgment of a skilled psychiatrist will frequently be wrong. This point was made eloquently in Fiederlein v. City of New York Health and Hospitals Corporation... [where the court] observed:
‘The prediction of the future course of a mental illness is a professional judgment of high responsibility and in some instances it involves a measure of calculated risk. If liability were imposed on the physician…each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitation of a vast number of patients would be impeded and frustrated. This is one of the medical and public risks which must be taken on balance, even though it may sometimes result in injury to the patient or others.’ ”
The Court went on to conclude that with the benefit of hindsight we now know that Dr. Malla erred in his assessment of Mr. Buyze’s suicide risk. However, the Court did not consider that he breached the standard of care expected of a reasonably prudent psychiatrist. Dr. Malla properly considered the information that was available to him and was of the opinion that the patient’s risk of suicide was ameliorated by the fact that he wanted to be admitted and was seeking help. Dr. Malla’s diagnosis was reasonable in the circumstances While Dr. Malla had noted that Mr. Buyze had “no plans”, while the nursing assessment documented a plan, Dr. Malla testified that he was of the opinion that Mr. Buyze’s feelings changed once he was admitted to the hospital and felt that he was safe from self harm.
Dr. Malla’s order for hourly observation was reasonable given that Mr. Buyze had never attempted to commit suicide in the past and previously had been admitted as a voluntary patient and had not attempted to elope during that admission. While there was some suggestion that he should have communicated to his team more clearly that he considered Mr. Buyze to be a suicide risk, the Court found that his failure to do so had no causal effect because Ms. Silverman well understood the need to keep a close eye on her patient. Consequently, the cross-claim advanced by LHSC was dismissed.
Buyze v. Malla, 2008 CanLII 865