Dallas Lawyer Sues Therapists for Suicide

By Dawn E. Conner

Every day, 85 people in the U.S. commit suicide. It's the eighth-leading cause of death in the country. And most of these people saw their primary care physician in the two months before they killed themselves.

"When you put those statistics together, there's plenty of room for lawyers to be bringing physicians and therapists to task," says Dallas attorney Skip Simpson, who in 1992 founded a three-lawyer firm that specializes in suing physicians and therapists whose patients commit suicide, on the theory that they should have seen signs of suicide and taken steps to prevent it.

"If the mental health industry will not set limits on their own industry, the lawyers will," says Simpson, 51, who describes his practice as focused on "medical negligence in the mental health field," including false memory and improper diagnosis cases.

Although his niche is unusual, it's lucrative. Simpson's first suicide case, on behalf of the family of a 40-year-old engineer who shot himself after his doctor prescribed migraine medication that caused severe depression, brought a $3 million verdict.

Simpson had demanded $1 million, the doctor's malpractice policy limits. The doctor scoffed at the request and offered $5,000. The verdict was the first in a civil trial for Simpson, a former federal prosecutor who has handled organized crime, savings and loan fraud and other criminal cases.

"In the mental-health area you can pretty much have a field day," he says. "Psychotherapy is pretty much the only field that creates the disorder it treats."

Simpson established himself in the early '90s when he brought the first ever "false memory" case on behalf of Laura Pasley. She claimed that her therapist had implanted false memories of sexual abuse while treating her for something unrelated.

The notorious case, which settled for a confidential amount, prompted the family of television comedienne Roseanne Barr to hire Simpson in case Barr decided to sue them for sexual abuse. Barr claimed publicly that she had repressed memories of the abuse, but she never filed suit.

Since then, Simpson has handled a number of suicide cases, several of which have settled for favorable but confidential amounts, he says. His website, www.skipsimpson.com, details the Pasley case and other wins.

Military Background

As a young man Simpson joined the U.S. Air Force, which paid for him to get a college degree in psychology and to get a law degree. As a prosecutor and defense attorney for criminal cases on an air base, Simpson became well-acquainted with the insanity defense. It was here that he learned the devastating effects that poor therapists can have on patients.

"My first duty was at Lackland Air Force Base, which had a population of about 80,000 that changed every few years. A lot of those people were brand-new Air Force recruits. Some of them were coming from the streets, and slamming into the military system was quite a shock for them," Simpson recalls.

"That's where I first learned that psychiatrists may not be as equipped to handle their patients and life's problems as one would have expected."

Later, he served as a military judge in Washington, D.C., and, after leaving the military, as an assistant U.S. Attorney in Dallas, where in 1985 he was named by a police officers' group as the state's top narcotics prosecutor. He then joined a seven-lawyer firm in Dallas where he handled white-collar criminal defense, primarily in savings and loans fraud cases.

"During the time I was there, one of my partners brought in a case where a woman's husband had committed suicide. She was distraught and really wanted answers as to why he committed suicide -- that was what she really wanted to know," Simpson relates.

Because of his insanity-defense experience in the military, Simpson took the matter and soon determined that, in his opinion, medical malpractice had occurred. Simpson believed that the neurologist who was treating the man for migraine headaches had, in fact, precipitated the suicide by prescribing three different drugs, all of which can cause depression.

A week after beginning the medication, the man had called the neurologist to say that he couldn't concentrate on his job and that he was having nightmares, among other symptoms.

"He basically ticked off the criteria for major depression," Simpson says.

But the neurologist didn't notice these signs nor did he ask the man to come in for an exam. Instead, he told his patient, who had diabetes, that the symptoms were symptomatic of his blood sugar being out of kilter. In his depression and confusion caused by the drugs, the man went home, tape-recorded a goodbye message to his wife and family, and shot himself, Simpson says.

Emotional Cases

Since then, Simpson has handled about 10 suicide cases. He estimates they comprise about 80 percent of his current practice. It's difficult work, he says, because they involve extremely emotional matters involving very emotional clients.

"Most families that seek to hire a lawyer in a suicide case are looking for answers. They are looking for reasons to explain their loved ones' decision to kill themselves.

"When you're representing the estate and the survivors, their first question is, 'What responsibility do I have for this suicide? What did I do wrong? What did I miss, and why didn't I see this coming?'" Simpson says.

Families are often prompted to seek the advice of a lawyer in suicide cases on the recommendation of friends or relatives, according to Simpson. "In some instances, they're looking for answers; in others, they're upset with what they perceive to be misbehavior on the part of the mental-health treater. But I have not yet had anyone come to me with the primary motive, or the motive at all, being money."

Jurors generally seek answers to the same questions, Simpson says. Like the survivors of a suicide victim, they want to know why a person would ever take their own life. More importantly, they want to know why the therapist should be held responsible.

"What goes on in jurors' minds at trial are such questions as, 'Why would someone take their own life?' And, 'Why would it ever be the doctor's fault?'" Simpson says. This makes it especially important to question jurors ahead of time about their feelings on suicide, and to pre-select the jury to weed out jurors who strongly oppose suicide under any circumstance.

Simpson always starts these trials with his strongest witness, which, in many cases, is the defendant therapist or psychiatrist who can be cross-examined as a hostile witness.

"You get the therapist on the witness stand, and start cross-examining them about what they know about their own field. You ask questions in such a way as to prove the psychiatrist isn't competent, either by experience or by their education or by the way they practice.

"You may even be able to get them to say that doctors can cause suicide," Simpson says.

Most cases are brought under a negligence theory. Simpson argues that the therapist didn't recognize the signs or symptoms of suicide, or misdiagnosed a mental condition that led to suicide.

"For example, the therapist might have missed entirely the fact that the person was depressed, or in the case of a manic depressive, the therapist might have only treated the mania and not the depression," he says.

In other cases, "when I claim they didn't properly treat the patient, that means that the therapist wasn't giving the proper amounts of antidepressants, for example, or that they weren't properly prescribing the medication," Simpson says.

Allegations of false memory implantation rarely arise in suicide cases, Simpson says; they are usually separate cases. However, Simpson has handled at least one case in which he claimed that a false memory of abuse was implanted by a therapist into a person who later killed herself. Simpson claimed that the false memory was the person's "primary reason for suiciding."

In Texas and most jurisdictions, plaintiffs suing psychiatrists must present expert testimony on the standard of care, Simpson says. And though jury instructions on the standard of care generally include language about whether the practitioner's treatment was "usual and customary," Simpson says he relies on trial techniques to get around this language.

"'Usual and customary' assumes that everyone is first trying to do no harm to the patient and is trying to take everything that they've learned throughout their life, in medical school and in every subsequent seminar on new medicine, to try to cure their patient.

"I can show the jury in the first 120 seconds that just because everyone does it, doesn't make it so. Everyone used to treat diseases with leeches, and they were just wrong."

Simpson uses the example of obtaining past medical records. "Let's assume, for example, that in a particular community, usually no therapists ever obtain medical records from a prior treater. That's unacceptable. Just because no one does that, doesn't mean they haven't violated the standard of care."

Medical and psychological records are discoverable in suicide cases because the patient-therapist privilege assigned to these records moves to the patient's survivors after the patient's death, Simpson says.

Defenses

There are several defenses that typically arise in suicide cases, according to Simpson:

The "best judgment" defense, which portrays the therapist as a well-meaning practitioner who used his or her "best judgment" after careful consultation and evaluation of the patient.The best counter-argument, Simpson says, is to examine the patient's medical records and argue that the therapist didn't adequately review these records and conduct an adequate exam for an "elevated risk" of suicide. Another approach: If the therapist treated the patient for a substantial period of time yet has only three to four pages of notes in the treatment file, Simpson can argue that this shows the therapist didn't adequately treat the decedent, he says.
The "suicide is impossible to predict" defense, which often claims that if the family, who knew the decedent well, didn't see signs of potential suicide, then the therapist couldn't have predicted it, either. The therapist tries to demonstrate that the family or the decedent denied any suggestion that the person was suicidal and so there was nothing for the therapist to see, either."One counter to this defense is that the therapist missed the suicide warnings, which, like signs in the road, would predict that someone is going to commit suicide," Simpson says. "The fact that someone says, 'I'm not going to commit suicide,' is not necessarily valid. Sometimes patients don't tell their therapists about thoughts of suicide because they don't want to be stopped from doing it." But therapists are trained to recognize signs that even the decedent or the family wouldn't see, Simpson says.
The "family should have picked up on the suicide signals" defense. According to Simpson, this defense only serves to anger the family more, as they see it as the therapist's attempt to blame them "for something they should have been aware of when they aren't trained in the field of mental health," he says.
The "intervening cause" defense, in which the therapist claims that the decedent's decision to commit suicide was an intervening cause of the death. "That doesn't work," Simpson says. "It's like saying if you've left a weapon in a room with a small child and the child kills himself, the child is responsible for the death, when actually it was the negligence of you leaving the weapon with the child that caused the death."
Finally, many therapists rely on comparative negligence. In Texas, if the suicide victim is found more than 50 percent responsible for his or her own death, the plaintiffs lose, Simpson says.

Expert Witnesses

One of the advantages of mental-health cases is that they help lawyers develop the skill to deal with any kind of expert witness, according to Simpson.

"If you understand experts and can address expert testimony well, that equips you not only to do mental-health cases but also many other types of cases," he says.

For example, he recently handled a trademark case for a former white-collar criminal client, although he'd never worked in the intellectual property area.

"I told him I didn't even know whether the word 'trademark' was hyphenated," Simpson quips. "He didn't care."

Simpson used the techniques he developed in cross-examining psychiatrists to tear apart his opponent's chief witness, an industrial psychologist who claimed that he knew "what confused people in the marketplace," Simpson says.

When Simpson finished his cross-exam, the judge ruled that the psychologist was completely incompetent to testify in the case. The end result: A $40 million verdict for Simpson's client.