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Comparative negligence unavailable as a defense where hospital accepts care of self-harming individuals

Hospitals can be liable for patient suicides under certain circumstances, even where the self-harm inflicted by the individual would otherwise preclude a recovery. That is what the Colorado Supreme Court held in P.W. v. Children’s Hospital, 2015 SA 151, when it denied the hospital the right to assert a comparative negligence defense. Under a theory of comparative negligence, a plaintiff may recover only if his or her negligence was less than that of the defendant, and any damages are to be diminished in proportion to the plaintiff’s fault.

In P.W., the hospital admitted Plaintiff after he ingested almost fifty pills and cut his wrist. One doctor found that Plaintiff was “clearly a danger to himself.” The Plaintiff was placed on “high suicide precautions” which required Plaintiff to remain within sight of hospital staff at all times except while using the bathroom, during which time the hospital staff should communicate with Plaintiff every thirty seconds. The Hospital allowed P.W. to use the bathroom, and left P.W. unattended for approximately twenty minutes, during which time P.W. was able to hang himself with his scrub pants. P.W. suffered a severe brain injury as a result.

Because the actions creating the complained-of harms were undeniably self-inflicted, the law of comparative negligence would, in ordinary circumstances, preclude a recovery in the name of the injured. The Court, however, reasoned that a defendant cannot assert comparative negligence if the plaintiff could not have been negligent as a matter of law. To be negligent as a matter of law, an individual must owe a legal duty of care. Individuals, including P.W., have a general duty to act with ordinary care for their own safety. However, a third party may assume an individual’s duty of care by taking that duty into its own hands.

In P.W., the Colorado Supreme Court found that because the Hospital undertook a service that was reasonably calculated to prevent the very harm that P.W. suffered, and because P.W. relied on the Hospital act accordingly, the Hospital assumed P.W.’s duty to care and eliminated that duty for comparative fault purposes. The Court held that it would be improper to allow the Hospital to use the occurrence of that harm as a defense, “since that was the very thing [it] was obliged to prevent.”

This case should be a clear warning to medical providers who treat suicidal patients in a residential or inpatient setting: when a medical provider knows their patient is actively suicidal, and when the hospital admission is for the purpose of preventing self-destructive behavior, the medical providers – and the facility itself – may be liable for the patient’s self-destructive acts. This doesn’t mean that Court will start imposing strict liability on hospitals for suicide attempts. But it does mean that if a patient is admitted to the hospital to protect the patient from themselves, the hospital – and its employees – should be extra vigilant to ensure that the patient is appropriately supervised and treated.