The Double-Edged Sword: Building A Strong Defense

Article by Courtney Barbacane, Esq.

My stream of consciousness is enough to make you seasick. I am a former plaintiffs’ attorney, who transitioned to the defense side. I have compassion for the injured, but also compassion for healthcare providers who endeavor to “first do no harm.” Throughout my career, I have been tasked with defending behavioral health facilities in cases involving inpatient suicides. As with any medical malpractice case, I consider liability, causation, and damages experts.

In suicide cases, and with respect to mitigation of damages, I have seen challenges to “cause of death” through the use of forensic pathologists. I also have seen challenges, by way of expert testimony, to the “conscious pain and suffering” endured by the patient while attempting suicide. But what about an expert who can opine that, given the patient’s history of suicide attempts, he/she would have had a reduced life expectancy (regardless of whether the patient successfully committed suicide at our facility)?

As crude as that may seem, unfortunately, statistics show that patients with a history of suicide attempts are at high risk of eventually being successful in taking away their own life. So, if the death didn’t happen at our facility on a given date/time, it is likely that it would have happened at some point anyway. It is a valid argument, but also a double-edged sword.

Suppose statistics show that patients with a history of suicide attempts are at high risk of eventually being successful in committing suicide. Why didn’t the healthcare providers appreciate that risk and implement heightened precautions? Of course, this is laboring under the assumption that the medical providers were aware of the patient’s history of suicide attempts…

When evaluating whether to make the argument on reduced life expectancy, we have to consider who (and what) we are defending. If the focus is on the mitigation of damages only, then consider making the argument. How well that argument is received by a jury is another factor to be considered, especially if the suicidal patient was one who would ordinarily engender sympathy.

But, if you represent a clinician, the reduced life expectancy argument will negatively impact your liability defense. So, while you may be mitigating damages, you are simultaneously increasing your exposure. After thoughtful consideration of all potential arguments and their repercussions, we make our best recommendation to the client. While the ultimate decision lies with the client, our goal should be to arm our client with as much information as possible so as to make an informed decision on how to forge the strongest defense.