The Wisconsin Court of Appeals filed its decision on May 25, 2017 that affirmed a Wisconsin medical malpractice jury’s verdict that found that a psychotic patient committed to an inpatient mental health care facility could be found contributorily negligent for his suicide. The Wisconsin medical malpractice jury had found that the defendant mental health care facility was 20% responsible for the patient’s suicide death and the suicidal patient was 80% responsible for his own death.
The patient was in his early twenties when his behavior drastically changed beginning in July 2011. Within the next two months, he twice attempted suicide. On August 26, 2011, he agreed to a voluntary inpatient commitment to the defendant mental health care facility, for mental health care and treatment.
As a result of the initial assessment, the man was diagnosed as being psychotic and presenting a suicide risk. He was placed in the defendant’s most secure unit, in which patients are not allowed to have items that may be used to commit suicide, such as shoelaces. A week later, he was transferred to a less restrictive unit because his health care providers determined that his mental health had improved. While he was in the less restrictive unit, the defendant’s staff conducted safety checks on him every fifteen minutes. Despite the safety checks, the man committed suicide on September 10, 2011.
The man’s mother filed a medical malpractice wrongful death lawsuit against the defendant mental health care facility. The defendant raised the affirmative defense of the man’s contributory negligence in causing his own death. After the jury found that the man was 80% responsible for his own death, the plaintiff appealed, arguing that the trial judge erred by allowing the jury to consider the man’s own negligence in his death.
Custody And Control Rule
The Wisconsin Court of Appeals stated that there is a “custody and control” rule for apportioning negligence when a plaintiff with mental health issues suffers a self-inflicted injury while in the care of a defendant mental health care facility. The custody and control rule is an exception to the ordinary negligence standard, which contemplates the possibility of a heightened duty of care for a defendant and a lowered duty of self-care for a plaintiff if certain threshold facts establish a special custodial relationship between the plaintiff and defendant.
If the fact finder determines that the plaintiff was totally unable to appreciate the risk of harm and the duty to avoid it then the plaintiff’s contributory negligence is expunged; if not, the fact finder should compare the defendant’s negligence to the plaintiff’s contributory negligence using a subjective standard to evaluate the mentally disabled plaintiff’s duty of self care. Whether a mentally disabled person is totally unable to appreciate a risk and whether that person was negligent are questions of fact.
The Wisconsin Court of Appeals stated that the defense presented expert testimony that the man was able to appreciate the risk of harm from committing suicide and had the mental capacity to understand that a reasonable person with his diagnosis should avoid attempting to commit suicide: the patient was psychotic but was not totally unable to appreciate the risk of harm to himself by committing suicide. Hence, the Wisconsin Court of Appeals held that the trial court was left with no discretion but to include the contributory negligent questions in the special verdict form submitted to the jury.
Source Breslin v. Wisconsin Health Care Liability Insurance Plan, Appeal No. 2015AP1051
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