Budz, Chester H., Jr.

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Louisiana Law ReviewVolume 29 | Number 3April 1969Hospital's Duty to Protect Mental Patient fromSuicideChester H. Budz Jr.This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationChester H. Budz Jr., Hospital's Duty to Protect Mental Patient from Suicide, 29 La. L. Rev. (1969)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol29/iss3/8LOUISIANA LAW REVIEWHOSPITAL'S DUTY TO PROTECT MENTAL PATIENTFROM SUICIDEIn a California wrongful death action against defendant hos-pital for failing to take adequate precautions to prevent deceased,a mental patient with known suicidal tendencies, from making afatal leap from a hospital window, the trial court instructed thejury that if deceased's suicidal conduct was voluntary, defendantcould not be held liable. On appeal the California Supreme Courtin Vistica v. Presbyterian Hospital & Medical Center of SanFrancisco' held this to be erroneous and remanded the controver-sy for a new trial. The opinion suggested, however, that the juryshould be instructed that it could deny recovery if it found thatdecedent's voluntary conduct was "the responsible cause of herdeath." Without attempting to speculate as to what the courtexpected the jury to do with this rather ambiguous phrase, it isdifficult to grasp the full implication of the holding. Under thefacts of this case, it would be absurd to construe the holding tomean that the defendant hospital could set up as a defenseagainst its own negligence the very condition that gave rise tothe hospital's duty in the first place-the mental incapacity andsuicidal tendencies of the decedent. The case, therefore, invitesinquiry into the duty a private hospital owes to this type patient2and the effect of the patient's voluntary conduct on this duty.Generally, the duty of a hospital is to exercise that degree ofreasonable care, skill, diligence, and protection used by other hos-pitals in the community. 3 The hospital must exercise such reason-able care toward a patient as his known condition may require,4including reasonable care to safeguard the patient from dangersresulting from his mental incapacity. 5 In this regard, hospitalshave been held liable for allowing a mentally ill patient to com-mit suicide in such ways as drowning in a vat of boiling soap, 6slashing his wrist or throat,7 leaping from windows,' taking poi-1. 67 Cal.2d 471, 432 P.2d 193, 62 Cal. Rptr. 557 (1967).2. The defendant is a private hospital operated for profit. Such private hos-pitals, as opposed to charitable institutions, do not come under the doctrine ofcharitable immunity to limit tort liability. Fowler v. Norways Sanitorium, 112Ind. App. 347, 42 N.E.2d 415 (1942).3. Birmingham Baptist Hiosp. v. Branton, 218 La. 464, 118 So. 741 (1928).4. Wood v. Samaritan Institution, Inc., 26 Cal.2d 847, 161 P.2d 556 (1945).5. Tate v. McCall Hosp., 57 Ga. App. 824, 196 S.E. 906 (1938) ; Brawnerv. Bussell, 50 Ga. App. 840, 179 S.E. 228 (1935).6. Daley v. State, 273 App. Div. 552, 78 N.Y.S.2d 584 (1948).7. Brawner v. Bussell, 50 Ga. App. 840, 179 S.E. 228 (1935).8. Emory Univ. v. Shadburn, 47 Ga. App. 643, 171 S.E. 192 (1933) ; Spiveyv. St. Thomas Hosp., 31 Tenn. App. 12, 211 S.W.2d 450 (1947).[Vol. XXIXNOTESson, 9 and hanging. 1 The hospital's knowledge or notice that thepatient was likely to harm himself and its subsequent failure totake reasonable precautionary measures had consistently beenthe determinative factor influencing courts and juries to imposeliability in these cases. 1Liability has also been found where the hospital's negligencein allowing a mentally deranged patient to escape resulted indeath caused by exposure to inclement weather, 12 a train" orstreetcar 4 accident or drowning.15 In addition to consideringreasonable care after notice of elopement, the jury must examinethe broad question of whether the negligently allowed escapewas the proximate cause of death. Many cases absolve the hos-pital because of some later intervening force.Notwithstanding those holdings which have imposed liabilityon hospitals under the broad requirements of reasonable care, ahospital is not an insurer of a patient's safety, and the standardof care required is limited by the rule that no one is required toguard against or take measures to avert that which reasonablemen under the circumstances would not anticipate as likely tohappen. 1" However, if the risk of harm is an appreciable one, asit is in the case of a suicidal patient, the question of reasonableanticipation is not one of mathematical probability alone. "As thegravity of the possible harm increases, the apparent likelihoodof its occurrence need be correspondingly less.'7In addition to the duty to take reasonable preventive meas-ures after notice of a patient's tendency to harm himself, a hos-pital is also required to use reasonable care and skill to detecta patient's tendencies toward self-destruction. s It is not neces-sary for the hospital to have had notice of the particular methodby which the accident might happen if its occurrence could have9. Broz v. Omaha Maternity & Gen. Hosp. Ass'n, 96 Neb. 648, 148 N.W. 575(1914).10. Smith v. Simpson, 221 Mo. App. 550, 288 S.W. 69 (1926); Dow v.State, 183 Misc. 674, 50 N.Y.S.2d 342 (Ct. Cl. 1944).11. Wood v. Samaritan Institution, Inc., 26 Cal.2d 847, 161 P.2d 556 (1945)Edwards v. Grace Hlosp. Soc'y, 130 Conn. 568, 36 A.2d 273 (1944).12. Burtman v. State, 188 Misc. 153, 67 N.Y.S.2d 271 (Ct. Cl. 1947).13. Arlington Heights Sanitarium v. Deaderick, 272 S.W. 497 CTex. Civ.App. 1925).14. Phillips v. St. Louis & S.F. Ry., 211 Mo. 419, 111 S.W. 109 (1908).15. Hawthorne v. Blythewood, Inc., 118 Conn. 617, 174 A. 81 (1934).16. DeMartini v. Alexander Sanitarium, Inc., 192 Cal. App. 2d 442, 13 Cal.Rptr. 564 (1961). See also Rice v. California Lutheran Hosp., 27 Cal.2d 296,163 P.2d 860 (1945).17. W. PRossER, HANDBOOK OF THE LAW OF TORTS 222 (3d ed. 1964).18. Ilignite's Adm'x v. Louisville Neuropathic Sanitorium, 233 Ky. 497, 4S.W.2d 407 (1928) ; Maki v. Murray Hosp., 91 Mont. 251, 7 P.2d 228 (1932).1969]LOUISIANA LAW REVIEWbeen reasonably anticipated.19 It therefore follows that if a hos-pital has been put on guard as to a patient's suicidal tendenciesand as to his probable method of accomplishing his purpose (asin the case where suicides or dangerous escapes have been at-tempted in a particular way in the past), the duty of the hospitalto protect and prevent is increased correspondingly.20Thus, several factors are relevant in determining whether ahospital exercised reasonable care under the circumstances toprevent a mentally ill patient from committing suicide: (1)knowledge or reasonable notice of suicidal tendencies or intent,(2) anticipation of the method or instrumentality the patientcould be expected to utilize, (3) responsive or corrective meas-ures the hospital takes to avert the reasonable consequences ofthe patient's anticipated conduct, and (4) the risk of harm tothe patient that can be reasonably expected if the hospital failsin its duty.These factors assist the jury in deciding whether the hospitalwas negligent in its care of the patient, but as to the final ques-tion of liability, there are other considerations. What effect, ifany, should the voluntary actions of a mentally ill patient underthe care and control of a hospital have upon the question of thehospital's liability in suicide cases? As illustrated by the Visticacase, the voluntary conduct of the patient can vitally effect thequestion of defendant hospital's liability if the jury determinesthat conduct to be the "responsible cause" of the death.The exact inference to be drawn from this case is perhapsonly known to the court, but the decision does invite a considera-tion of the standard of care mental incompetents are required toobserve for their own protection. Cases considering this questionreflect the inclination of courts to deal with it in terms of con-tributory negligence as a bar to the insane plaintiff 's recovery.This tendency seems at least questionable since many cases in-volve very intentional, well planned acts (suicide, escapes, etc.)by the plaintiff, and not the customary failure to use reasonablecare for one's protection as in the usual contributory negligencecontext. It is rather absurd to assert that plaintiff negligentlystole a razor blade and with it negligently slit his throat. Never-theless, in light of the consistent application of contributory neg-19. Munsey v. Webb, 231 U.S. 150 (1913) ; Robert v. United States ShippingBoard Emergency Fleet Corp., 240 N.Y. 474, 148 N.E. 650 (1925) ; Condran v.Park & Tilford, 213 N.Y. 314, 107 N.E. 565 (1915) ; Spivey v. St. Thomas Hosp.,31 Tenn. App. 12, 211 S.W.2d 450 (1947).20. Paulen v. Shinnick, 291 Mich. 288, 289 N.W. 162 (1939).[Vol. XXIXNOTESligence terminology in the cases, an analysis of this area of thelaw necessitates its continued use by the writer.The early decisions considering the question adopted the veryconservative and sometimes harsh presumption that all personswere responsible for conduct that would amount to contributorynegligence for the average, reasonable man unless it was shownthat at the time they were absolutely insane or completely de-void of intellect.1 The reason for the adoption of this presump-tion appears to be that the courts were reluctant to introduceinto the law the necessity of correlating the lesser degrees of in-sanity with the degree of plaintiff's contributory negligence.There seems to be a small minority of courts today that still fol-lows this line of cases .22This reluctance has been overcome in most jurisdictions to-day by submiting the question to the jury after introduction intoevidence of the facts pertaining to the plaintiff's particular typeof mental incapacity and his actions under the circumstances ofthe case. The question of the effect of the plaintiff's mental con-dition upon his recovery is for the court to decide as a matter oflaw only in those cases where reasonable men following the lawcould come to no other conclusion.23There is unanimity among the cases on the proposition thatone who is completely insane or devoid of intelligence to the ex-tent of being unable to appreciate a dangerous situation andavoid exposure to it cannot be guilty of contributory negligenceas a matter of law.2 4 However, even among those states adoptingthe more liberal approach of allowing lesser degrees of mentalincapacity to affect the jury's consideration, there is still somedisagreement as to the exact effect this should have on the issueof whether plaintiff exercised reasonable care for his own pro-tection. 25 The Restatement of Torts (Second) reflects the unset-21. Johnson v. Texas & P. Ry., 16 La. App. 464, 133 So. 517 (2d Cir. 1931)Riesbeck Drug Co. v. Wray, 111 Ind. App. 467, 39 N.E.2d 776 (1942).22. See Riesbeck Drug Co. v. Wray, 111 Ind. App. 467, 39 N.E.2d 776 (1942);Eckerd's Inc. v. McGhee, 19 Tenn. App. 277, 86 S.W.2d 570 (1935).23. DeMartini v. Alexander Sanitarium, Inc., 192 Cal. App. 2d 442, 13 Cal.Rptr. 564 (1961).24. Johnson v. Texas & P. Ry., 16 La. App. 464, 133 So. 517 (2d Cir. 1931)DeMartini v. Alexander Sanitarium, Inc., 192 Cal. App. 2d 442, 13 Cal. Rptr. 564(1961) ; Emory Univ. v. Lee, 97 Ga. App. 680, 104 S.E.2d 234 (1958) ; RiesbeckDrug Co. v. Wray, 111 Ind. App. 467, 39 N.E.2d 776 (1942) ; Noel v. McCaig,174 Kan. 677, 258 P.2d 234 (1953) ; Hill v. Abram Smith & Son, 176 Mich. 151,142 N.W. 565 (1913) ; Oliver v. State, 17 Misc. 2d 1018, 186 N.Y.S.2d 151 (Ct.Cl. 1959).25. See DeMartini v. Alexander Sanitarium, Inc., 192 Cal. App. 2d 442, 13Cal. Rptr. 564 (1961) ; Emory Univ. v. Lee, 97 Ga. App. 680, 104 S.E.2d234 (1958).1969]LOUISIANA LAW REVIEWtled character of this area of the law by expressing no opinionas to whether insane persons are required to conform for theirown protection to the standard of conduct which society demandsof sane persons.26In those cases where the mentally ill plaintiff was under thecare and control of a hospital at the time of the accident, the dis-tinction between absolute insanity and less severe mental illness,as well as the disagreement as to its effect upon the degree ofcare expected of the plaintiff appears less significant.2 7 Thesecases place considerable emphasis upon the special duty relation-ship formed and tend to require a lower standard of care fromthe patient for his own safety. However, since a hospital is notan insurer, the patient is always required to exercise whatevercapacity he has for his own protection.2 8 Other than this some-what more liberal approach when the patient-plaintiff is underthe care of a hospital, few generalizations can be deduced.Thus, as the California Supreme Court expressed in theVistica case, in perhaps too succinct a manner, the jury has thewell-placed but difficult responsibility of weighing the patient'scapacity to protect himself with the hospital's concomitant dutyto guard the patient in determining the "responsible cause" ofthe accident.Chester H. Budz, Jr.LOUISIANA LOAN LAWSWe are living in a society geared to a "buy-now-pay-later"plan. Almost any consumer' can finance his goods and servicesover an extended monthly payment plan. The financing of goodsand services is broadly categorized as consumer credit. The ar-rangement for extension of credit may be made by the consumerwith the person or organization providing the goods or furnish-ing the services or with some other entity which advances thecash to the consumer to pay for such goods or services in returnfor the consumer's promise to repay the advance. Consumer26. RESTATEMENT (SECOND) OF TORTS § 464, caveat (1965).27. See Lange v. United States, 179 F. Supp. 777 (N.D.N.Y. 1960; EmoryUniv. v. Lee, 97 Ga. App. 680, 104 S.E.2d 234 (1958) ; Doty v. State, 33 Misc.2d 330, 226 N.Y.S.2d 901 (Ct. Cl. 1961).28. DeMartini v. Alexander Sanitarium, Inc., 192 Cal. App. 2d 442, 13 Cal.Rptr. 564 (1961).1. Any person who acquires goods or services which he or his family will useprimarily for purposes other than business or capital producing is, at least in re-lation to such goods or services, a consumer.[Vol. XXIX

Hospital\u27s Duty to Protect Mental Patient from Suicide

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Hospital\u27s Duty to Protect Mental Patient from Suicide

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