Why Exempting Negligent Doctors May Reduce Suicide: An Empirical Analysis

Abstract

This Article is the first to empirically analyze the impact oftort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists-the very defendants who would seem best able to prevent suicide. Using a fifty-state panel regression for 1981 to 2013, we find that states which allowed psychiatrists (but not other doctors) to be liable for malpractice resulting in suicide experienced a 9.3% increase in suicides. On the other hand, and more intuitively, holding non-psychiatrist doctors liable decreases suicide by 10.7%. These countervailing effects can be explained by psychiatrists facing liability choosing not to work with patients at high risk for suicide, whereas other doctors do not have that ability and instead avoid liability by providing better care. The Article makes important contributions to the law of proximate cause and to the more general phenomenon of regulatory avoidance. Traditionally, one could not be liable for malpractice that caused another's suicide-the suicide was considered a superseding and intervening cause. About half ofstates retain the old common law rule. Others have created exceptions for psychiatrists only or for all doctors, and some have abandoned the old rule entirely. Our findings suggest that expanding liability for psychiatrists may have an adverse effect. Accordingly, this Article suggests that the best policy might be to retain or revive the traditional no-liability-for-suicide rule for mental health specialists. The implications are enormous: over 40,000 people in the United States die each year from suicide.

Keywords: Regulatory Avoidance, Suicide, Screening, Actual Causation, Proximate Cause, Superseding Intervening Force, Activity Levels, Care Levels, Deterrence, Psychiatrists, Doctors, Mental Health Providers, Torts

JEL Classification: K13, K32, I18