Frequently Asked Questions
• Why would a lawsuit be filed in the wake of a suicide?
• How does The Law Offices of Skip Simpson decide to accept cases?
• Who can bring a lawsuit?
• What must be proven?
• What type of damages are recoverable?
• When can a claim be brought?
• What does The Law Offices of Skip Simpson charge for their services?
• What are some examples of mental health negligence?
- American Association of Suicidology - www.suicidology.org
- American Foundation for Suicide Prevention - www.afsp.org
- The National Alliance for the Mentally Ill (NAMI) - www.nami.org
- Guide to Suicide Prevention in College - accreditedschoolsonline.org
• Why would a lawsuit be filed in the wake of a suicide?
Sadly, millions of living Americans have lost a family member to suicide. Many, knowing that their loved one was under professional care, assumed that this care was good care. They assumed if their loved one was in a psychiatric facility, the loved one would be safe from suicide.
The reality is that often psychiatric hospitals, psychiatrists, psychologists, and other mental health professionals fail to provide the kind of patient safety and care which they are trained and expected to provide. Too often, these failures result in the needless suicides of patients - patients whose instinct to live has been stripped by the mental disorder which plagues them.
Suicidal patients generally suffer from treatable psychiatric disorders. Decades of research have revolutionized our understanding of the biological processes responsible for these disorders. We now know more than ever about mental illness and its treatment. Powerful antidepressant, antianxiety, antipsychotic and mood stabilizing medications have proven remarkably effective in the treatment of depressive disorders, bipolar disorders, anxiety disorders, or schizophrenia, all of which contribute to suicidal behavior. In addition to medication, proper psychotherapy by a competent and caring therapist has been proven to aid in alleviating the patient's symptoms and prevent suicide. To properly treat psychiatric patients, mental health providers must first make a proper diagnosis of the patient's condition. Then, they must prescribe the right treatment. With the right diagnosis and the right treatment, the likelihood of suicide is dramatically reduced, if not eliminated.
When treating suicidal patients, mental health professionals have the further duty to properly assess their patients for suicide. They must consider the risk factors, which we know indicate that suicide is likely. When a patient is at serious risk for suicide, the mental health professional has a duty to act to prevent the suicide. If a patient is hospitalized because of his or her serious risk for suicide, the hospital must place the patient on a safe observation level which means constant observation. Typically this means one-to-one observation within reach, or within constant visual observation...not every 15 minutes.
• What are some examples of mental health negligence?
- Dangerous observation levels in a psychiatric hospital.
- The most frequent manner of suicide in a psychiatric hospital is hanging. It takes only a few minutes to have irreversible brain damage from hanging. In a few more minutes death is likely. Only watching a suicidal patient every 15 minutes is below the standard of care and very dangerous.
If you have questions about the mental health care someone has received, Skip Simpson can help. With years of experience in psychiatric and psychological malpractice litigation, we passionately believe that reducing the suicide rate requires holding mental health professionals accountable.
• How does The Law Offices of Skip Simpson decide to accept cases?
There are many competent mental health professionals who provide excellent care to their patients. Our selection process ensures that we take only those cases where the provider's assessment or treatment fell below the standard of care. We will not take a case that we don't believe in.
In assessing cases, we obtain all of the relevant medical records. We conduct extensive interviews of family members and friends who have information that will help in our decision to take your case. If we believe the case has merit, we then have it evaluated by experts in the relevant fields, typically psychiatry, psychology, psychopharmacology, or neurology. If, at this stage, we decide to pursue the case, we will explain to you the reasons for our decision and the deficiencies we have identified in the care provided. We will also explain the process of civil litigation, what to expect and what not to expect. We want our clients to be as passionate about the case as we are, to take an active role in prosecuting the lawsuit, and to contact us whenever they have questions, suggestions, or concerns.
Although a suicide touches all of us, the law grants only certain individuals the right to pursue a lawsuit arising out of a patient's death. If negligence by a mental health professional causes injury short of death, only the patient typically has the right to bring a lawsuit. In some circumstances, the patient's spouse can join as a party to the lawsuit, recovering for the injury that he or she personally sustained as a result of the negligent treatment of the patient. However, where the negligence has resulted in death, the proper action is a Wrongful Death suit. This action is generally brought either by the victim's closest surviving relatives (usually the patient's spouse, parents, or children), the decedent's Estate, or both. The law varies from state to state. Therefore a tailored legal opinion must be obtained.
Generally, the burden is on the Plaintiff - that is, the person bringing the lawsuit - to prove that the mental health provider is liable for the patient's suicide or injury. The Plaintiff must first prove that the provider was negligent in the care for the patient. Negligence occurs when any mental health provider, including physicians, psychologists, social workers, counselors, therapists, or hospital employees, fails to comply with the standard of practice for providers with similar training and experience. In some cases, the provider has done something that a reasonably prudent provider would not have done in the same situation. In other cases, the provider has failed to do something that a reasonably prudent provider would have done.
Once the Plaintiff proves that the provider was negligent, the plaintiff then must prove that this negligence caused the suicide or some other injury. At this point it becomes important to determine if the health provider could have or should have anticipated the suicide attempt or some other injury. Because no mental health provider can guarantee a successful result, they will not be held liable simply because the treatment failed. The care must have been negligent, or the provider will not be liable. Finally, the Plaintiff must prove that some injury has been sustained, and present evidence through which the jury can determine the extent of the injury and the proper amount that the Plaintiff should be compensated. In many cases, the mental health provider has failed to properly diagnose a patient's mental disorder. Sometimes, having made the right diagnosis, the provider has failed to properly treat the disorder. In other cases, the mental health provider fails to properly assess his or her patient for suicide, or to take reasonable steps to prevent the suicide. Where these failures result in the death of, or harm to, the patient, a lawsuit can often be successfully pursued. The law varies from state to state. Therefore a tailored legal opinion must be obtained.
• What type of damages are recoverable?
In virtually all of our cases, the client's primary motive for filing the lawsuit is not to get money, although ordinarily that is the only ethical reason a lawsuit can be filed. Our clients correctly believe, however, through civil litigation, they can improve the quality of mental health care everywhere. In most states, the Plaintiff in a medical negligence action is entitled to be fairly compensated for the loss that he or she has suffered. Where the provider's negligence has resulted in the death of the patient, the relevant State's Wrongful Death Act usually governs the type of damages which may be recovered. In such cases, the Plaintiff may typically recover the patient's medical and funeral expenses and the decedent's lost earnings. Usually, the Plaintiff can also recover damages for the mental anguish of the decedent and the decedent's survivors, along with the loss of the decedent's companionship and society. Similar damages can be recovered where the patient has survived. Where the provider's conduct was egregious, the jury may be also entitled to award punitive damages, which are designed to punish and deter misconduct, rather than to merely compensate the victims for their losses. Damages awarded in wrongful death suits can often be substantial. Unfortunately, some States have enacted legislation which imposes a cap on the amount that a jury can award for the misconduct of a physician. The law varies from state to state. Therefore a tailored legal opinion must be obtained.
• When can a claim be brought?
In every State, there is a limit on the amount of time in which a lawsuit must be filed. In some states, this so-called Statute of Limitations begins from the date of last treatment. In other States, it begins to run from the date of the negligent act. In still other States, it begins to run when the Plaintiff, through the exercise of due diligence, could have discovered the negligence. When the negligence has resulted in the death of the patient, many States start running their Statute of Limitations on the date of death. If the patient is a minor or incompetent, the Statute of Limitations may not begin to run until later (typically, until the minority or incompetency has lifted). Because each State's Statute of Limitations is unique, it is important that a tailored legal opinion be obtained to determine whether the Statute of Limitations in your State has expired. If you or someone you know has been injured by the negligence of a mental health provider, it's important that you act quickly to ensure that your claim is timely filed. Failure to do so will likely result in dismissal of the action.
• What does The Law Offices of Skip Simpson charge for their services?
Actions arising out of the negligence of a mental health provider are expensive to successfully pursue. Fortunately, our fee structure is set so that we bear the risk, not our clients. All of our work is based upon contingency fees, through which we are paid by a percentage of the recovery, not at a standard hourly rate. You may, however, decide to opt for an hourly rate. Under the contingency plan, we are paid if, and only if, there is a recovery on the claim. In addition, any out of pocket expenses incurred in pursuing the claim - such as filing fees, copying costs, travel, deposition costs, and expert costs - are paid out of the recovery you receive. That means that if we fail to recover on your claim, you are not responsible for any costs, nor are you responsible for any legal fees. In addition, there is no charge for us to review your case while we determine whether to accept it. All of these issues will be carefully detailed in the fee agreement if the case is accepted.
• What are some examples of mental health negligence?
- Improper diagnosis
- Failure to conduct a proper suicide risk assessment
- Failure to take steps to prevent suicide
- Premature discharge
- Tardive dyskinesia
- False "Repressed" Memories
• Improper diagnosis
The right mental health treatment begins with making the right diagnosis. Decades of mental health research have established effective treatments for disorders which would otherwise be crippling. Knowing the patient's proper diagnosis is the first step in ensuring that the patient gets the proper care. Psychiatric diagnosis requires an attention to detail. Not only is the mental health professional expected to inquire about the current, presenting problems that the patient is experiencing, he or she must also conduct a thorough inquiry of the patient's psychiatric history. In many cases, the mental health professional is expected to contact family members and friends, to obtain additional information. When the provider is a physician, a complete physical, along with an inquiry into the patient's medical history, is essential to ruling out organic, non-psychiatric causes of the patient's problems.
Most psychiatric disorders have devastating effects. When a mental health professional fails to diagnose serious disorders, such as Major Depression, Bipolar Disorder, or Schizophrenia, the unfortunate result may be the suicide of the patient. At a minimum, the patient will experience psychological and physical pain, which could have been avoided through proper treatment. The failure to diagnose a patient with a discernible disorder, or ascribing a wrong diagnosis to the patient, is negligence which can have profound consequences for the patient.
The mental health provider's goal is to get the patient back into the game of life. There are a range of treatment options available for every major psychiatric disorder. While these treatments may not always cure the illness, they will help to control the symptoms, and enable the patient to better function with the disorder with which they suffer. Often, treatment will be pharmacological in nature. There are dozens of different antidepressants, many of which achieve their results by acting on different neurotransmitters in the brain and virtually all of which have different side effect profiles. These have proven effective in treating debilitating depressions in the vast majority of patients. Effective treatments for Bipolar Disorder, including such mood stabilizers as Depakote, Tegretol, and Lithium, have helped to bring the vicious emotional roller-coaster to a halt. And with the help of antipsychotic medications, like Haldol and Risperdal, psychiatrists usually can eliminate hallucinations and delusions in patients suffering from Schizophrenia, Bipolar Disorder, and other mental illnesses.
But proper mental health treatment goes beyond medication. Research has proven that psychotherapy is a useful adjunct to medication. But to be effective, psychotherapy must be provided by a competent, caring professional who is trained in its use and who is willing to devote the time and attention necessary for the task.
When a mental health professional fails to provide the right medication, or fails to employ needed psychotherapy, this failure is negligence which robs his or her patients of the ability to get their lives back on track. Unfortunately, too often this failure also leads to suicide.
• Failure to conduct a proper suicide risk assessment
Suicide is the most tragic outcome in mental health care. Mental health professionals must have a passion for life. They have a duty to conduct a suicide risk assessment of any potentially suicidal patient. For those under the care of a health provider, suicide does not occur out of the blue. Mental health professionals should be trained to know the clues to suicide. They should be trained to know the relevant risk factors. They should also be trained in the proper way to inquire about suicidal thinking. Questions about suicide should not be mechanically asked in a rote fashion. The patient must feel a genuine sense of concern on the part of the health provider. If not, the patient may not describe his or her suicidal thinking.
Although suicide occurs in every race, gender, and age group, generally older or adolescent white males are at higher risk for suicide. Patients with a history of suicide attempts are at higher risk. Patients suffering from depression, bipolar disorder, anxiety disorders, drug dependency or abuse disorders, and schizophrenia are at higher risk for suicide. The mental health professional must consider these risk factors when assessing his or her patient's potential for suicide.
In addition, a mental health professional has a duty to directly inquire about his or her patient's suicidal thinking. Has the patient been considering suicide? Has the patient formulated a plan? Does the patient intend to carry out the plan? Even if the patient denies suicidal thinking, the clinician must consider the entire picture. Is the patient experiencing unusual stresses? Has the patient made statements to others which indicate that he or she has been considering suicide? Does the patient's history, psychiatric disorder, or current condition suggest that the patient is at risk for suicide?
In the clinical setting, suicide prevention begins with suicide risk assessment. If an assessment is done improperly - or worse, if it is not done at all - the unfortunate result could be the suicide of the patient. The failure to conduct a proper suicide risk assessment is negligence, for which the mental health professional may be held liable.
• Failure to take steps to prevent suicide
The good news is that suicide is preventable where a competent health provider has his or her head in the game. When a health professional knows, or should know, that a patient is at risk of dying by suicide, he or she has a duty to take reasonable steps to prevent the suicide. The reasonableness of the steps taken depends upon the extent of the patient's risk.
Where the patient is at low risk for suicide, less intervention is required. The mental health professional may decide to increase the frequency and number of visits with the patient. He or she may decide to change the treatment plan, prescribing more effective medications or altering the form of psychotherapy provided. As the risk for suicide increases, the mental health professional has a duty to take more active steps. He or she may be required to contact the patient's family or friends, informing them of the risk and educating them on the warning signs for suicide. He or she is required to inquire about the patient's access to lethal means, particularly firearms, and to ensure that the patient's access to these is eliminated. If the risk for suicide is high, the mental health professional has a duty to hospitalize the patient, seeking involuntary commitment of the patient if that is necessary.
When the patient is already in the hospital as a result of suicidal thinking, there should be no way for a suicide to occur. Unfortunately, it does occur, with alarming frequency, and usually by hanging. Hospital staff have a duty to ensure that the patient's access to lethal means is restricted, to monitor the patient regularly (constantly if necessary), to ensure that the patient is receiving proper treatment, and to keep all staff members informed of the patient's condition and risk for suicide.
Mental health professionals have a duty to take reasonable steps to prevent suicide. There is, in everyone who dies by suicide, a part of them which wants to live. The mental health professional is charged with the responsibility of getting them through this moment of suicidal crisis, so that they can in fact live.
The hospital setting usually provides seriously ill psychiatric patients with the best environment in which to get well. Unfortunately, all too often, hospitals discharge their patients before they're ready to go home, often for financial reasons. When a hospital discharges a patient at high risk for suicide, or when a hospital discharges a patient without making appropriate arrangements for post-discharge care, the hospital may be liable if the patient subsequently hurts himself or others. We carefully examine "remarkable recoveries" occurring at about the time insurance money runs out.
One of the unfortunate side-effects of antipsychotic (so-called "neuroleptic") medications is their tendency to cause long-term neurological problems when used over an extended period of time. One of the most serious of these problems is known as tardive dyskinesia. Patients suffering from this serious, often permanent, disorder experience involuntary movements, usually in the face, mouth, arms, and legs.
In a few cases, because the patient's disorder is so disabling when the patient is off medication, a physician has little choice but to prescribe an antipsychotic for an extended period of time. While the physician has a duty to inform the patient of the possibility of tardive dyskinesia, and to obtain the patient's consent to the treatment chosen, in these rare circumstances it may be reasonable to prescribe an antipsychotic chronically.
In other cases, however, a physician has negligently prescribed an antipsychotic medication for improper purposes, often to treat the patient's anxiety or to calm or sedate the patient. If an antipsychotic has been prescribed for purposes other than the treatment of hallucinations or delusions, and tardive dyskinesia has resulted, the physician will likely be found to have been negligent.
Even when an antipsychotic has been prescribed for the right reasons, if the physician fails to properly evaluate the patient for the onset of tardive dyskinesia, he or she may still be liable. Full blown tardive dyskinesia can often be avoided by discontinuing the medication or reducing the dosage at the first sign of its development.
Tardive dyskinesia is a crippling disorder which, through reasonable care, can usually be avoided.
Some mental health professionals believe that many of the most common psychiatric disorders are the direct result of childhood trauma. Employing hypnosis or guided imagery, along with providing the book, The Courage to Heal, they sometimes, negligently, lead their patients to believe that their illness is the result of, often very bizarre, early experiences. Patients are sometimes negligently induced to believe that they were the victims of graphic sexual abuse or that family members were leaders of satanic cults who forced them to engage in horrendous acts of violence.
Unfortunately, many patients come to fully believe that these are accurate memories from their childhood, without having received warnings that delayed memories are not reliable and are uncertain. Contrary to the mental health professional's intent, the patient's newly discovered memories become the patient's new reality and often leads to greater depression and an increased sense of hopelessness.
All too often, the patient is thrown into even greater despair, leading to tremendous psychological turmoil and sometimes suicide. Where a mental health professional fails to give proper documented warnings about the nature of memory and has negligently engaged in memory retrieval, he or she has acted negligently and will be liable to the patient for any injury that results.
