Kathryn Hobart had a long history of depression and panic attacks. In August of 1988 Hobart went to her family physician, Dr. Donald Shin, complaining of symptoms associated with depression. Shin treated her over the next several months, including issuing a referral to a psychiatrist.
In December of 1988 Shin became worried that Hobart was suicidal, so he referred her to a psychologist who recommended that Hobart be hospitalized. Hobart voluntarily checked herself into the hospital and she was placed on the least restrictive suicide watch. While hospitalized, Hobart's psychiatrist, Dr. Rachel Fargason, placed her on Doxepin and her condition improved. Several days later, Hobart was released, but she continued to receive outpatient treatment from Fargason and Shin, and her symptoms remained in check.
Two weeks after she was released, Hobart visited Shin and expressed concern about running out of Doxepin and the cost of repeatedly filling small prescriptions. Shin responded by prescribing 90 pills, with a refill for another 90 pills, equivalent to one month's supply.
In early January, Hobart's backpack was stolen, sending her into severe depression. The next day she filled her prescription for 180 Doxepin pills and rented a motel room where she proceeded to take over 200 of the pills, fatally over-dosing.
Hobart's mother brought a malpractice action against Shin, arguing that he deviated from the required standard of care by prescribing an excessive amount of Doxepin. Five and a half years after the complaint was filed, and less than one month before the beginning of the trial, the trial court allowed Shin to amend his answer to raise the affirmative defense of contributory negligence. The jury found for Shin and Hobart's mother appealed.
Holding: The trial court abused its discretion by allowing Shin to amend his answer to raise contributory negligence and the judgment was reversed. The court held that the record did not provide any evidence explaining why Shin waited until the eve of trial to amend his answer to include contributory negligence as a defense, and the plaintiff was prejudiced by her inability to properly prepare for the defense.
For some, choosing suicide is personal.
Further, after examining the relevant precedents, the court held that contributory negligence is not an appropriate defense in a suicide malpractice action against a treating physician. The court reasoned that in cases such as this one where the decedent had sought treatment for mental illness, the decedent's lack of care for her own safety should be apparent to the doctors treating her. As a result, the doctor should not be allowed to raise as a defense that a decedent was contributorily negligent by acting in a manner consistent with her disorder.
 | Michael Welner, M.D. Chairman The Forensic Panel |
Dr. Welner comments: Again we see a court deciding that if there is a history of an illness, a patient need not be expected to take personal responsibility. To support this inclination is countertherapeutic. Doctors who treat the intermittently suicidal regularly educate their patients to see options to suicide and to involve their support system (including the doctor) when these alternatives to death are hard to fathom. Psychiatrists who engage the patient in a behavioral contract even articulate this approach as one of a list of patient responsibilities. And why not? The dedication of therapists and psychiatrists who treat the intermittently suicidal, weathering frequent phone calls, emergency room visits, and other crises, can only have an effective end with a patient who can engage in a treatment plan. This circumstance is no different from the nephrologist who can only manage a kidney failure with dialysis, but requires the patient's involvement and regular attendance when failure to do so may hasten death.
Kathryn Hobart hoarded medication without confiding in her doctor when she saw him. She made a choice not to advise the doctor that she had essentially stopped taking the medicine (which would have been against medical advice), and did so at a time when she would never have had her decision-making capacity even questioned.
Some choose suicide as an option. They are hopeless, or may be convinced of a better existence elsewhere. The decision may horrify us, to the point that we assume the deceased was depressed, or must have been brainwashed. Certain diseases have been deemed societally acceptable to end one's life, such as AIDS or cancer. Otherwise, the patient must be crazy, says the court, to want to leave a world where love may be absent or personal burdens unrelenting.
There is unfortunate backlash to blanket paternalism in the law that implies that patients do not possess any judgment. Otherwise competent physicians are compelled to determine that the provocative, chronically suicidal patient—now judged by the court as effectively incompetent to even sign a behavioral contract—isn't worth the risk, and opt for the Prozac-for lunch bunch. Challenging patients will inevitably be propelled into treatment settings of less skilled and trained professionals. Such a system mirrors other jobs in society that have become principally reserved for immigrants and others willing to get their hands dirty. Is this really in the best interests of the patient?
